Michael Eburn: Australian Emergency Law | Bushfire & Natural Hazards CRC

Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD, Australian Lawyer. Email: meburn@australianemergencylaw.com

URL: https://australianemergencylaw.com

Updated: 9 hours 50 min ago

Liability for failing to use an AED?

27 February, 2024 - 10:27

A seller of defibrillators in NSW says:

We have a question from a customer – they would like to know if they have a defib and in case someone had a cardiac arrest on their premises or close by and they did not use the defib for that incident is the company liable?

The short answer is ‘no’; the longer answer is it depends on the circumstances.

A key issue is who has the cardiac arrest – is it a stranger – someone who just happens to be nearby – a visitor to the customer’s business or a staff member?

If it’s a stranger – someone ‘close by’, there is no duty to rescue a stranger (Stuart v Kirkland-Veenstra [2009] HCA 15). If there is no legal duty to attend there can be no liability for failure to do so.

If the person with the cardiac arrest is a staff member or a visitor to the customer’s business, then clearly there is a duty including a duty to provide first aid (Work Health and Safety Regulation 2017 (NSW) r 42). As the occupier of the premises there must be also be a common law duty to do something – you can’t just have a person die in your premises and do nothing; you would have to at least call triple zero and facilitate ambulance access.

But those duties still do not establish liability. The duty under both common law and legislation requires a defendant to act reasonably. That begs the question of ‘why was the defibrillator was not used?’ If there is some good reason, then there can be no liability.

The biggest issue is causation. For liability to be established a plaintiff would have to prove that it would have made a difference. Defibrillators may increase the chance of surviving an out of hospital cardiac arrest, but they do not guarantee that outcome. Most people who suffer an out of hospital cardiac arrest die, even with a defibrillator. On the balance of probabilities – that is it is more likely than not – that a defibrillator won’t save the patient’s life. That is not to suggest that they should not be deployed, they increase the chance of survival in the same way that CPR increases the chance of survival. Without intervention the chance of survival is zero. Getting the chance above zero is good but it is still not the case that the survival rate for out of hospital cardiac arrest, even with a defibrillator, is greater than 50%.

For related posts see:

Making the installation of AED’s compulsory (September 27, 2015);
Liability for failing to install an AED? (April 7, 2016);
Legal issues when installing a defibrillator? (August 23, 2016);
Choosing not to install an AED for spurious reasons (September 10, 2018);
Liability for installing, or not, an AED in a retirement community (December 1, 2018);
Fear of legal risk for installing AEDs is misplaced (September 17, 2019); and
Bill for mandatory installation of AEDs passes in South Australia (December 11, 2022).

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

Categories: Researchers

Power of RFS Commissioner to dismiss volunteers

25 February, 2024 - 12:02

Today’s correspondent tells me that my earlier post – The rules of evidence and a NSW RFS disciplinary panel (February 16, 2024) has:

… again opened up the sorry saga caused by NSWRFS to many volunteers who were poorly treated throughout the disciplinary hearing process.

The sad state of affairs is that many volunteers have forked out $10K of dollars of their own money for legal assistance. Some for no result at all and some who have ended up in court, to have it settled out of court by the NSWRFS and a gag order placed with no details of the case to be released.

(For a discussion on the general futility of seeking to challenge these types of decisions in the courts, see Michael Eburn ‘Litigating with the SES’ (December 2023) Issue 66 The Volunteer (Official Journal of the NSW SES Volunteers Association) pp. 20-22).

Those same volunteers have become concerned about proposed legislative changes in Queensland that, I’m told (ie I haven’t checked) will allow the Commissioner ‘to directly sack a member of a Rural Fire Brigade …’ (see Rural Fire Brigades Association Queensland Inc., ‘Letter to the Premier and Minister’, 25 January 2024). My correspondent continues:

This has raised a question from some of our members being:

‘Under the Rural Fires Act 1997 (NSW), where does the Commissioner or his staff have the authority to dismiss a volunteer from the NSWRFS?’

Brigade membership

With respect to the formation of a rural fire brigade, the Rural Fires Act 1997 (NSW) s 15(1) says:

A local authority may form one or more rural fire brigades for any rural fire district constituted for its area or part of its area.

The volunteer members of the Rural Fire Service are those persons listed on the membership register for each brigade (s 20). A member’s name must be removed from the register if they die or if they resign (Rural Fires Regulation 2022 (NSW) r 8(1)).

A member’s name may be removed from the register by the ‘responsible authority for [the] rural fire brigade’ (r 8(2)):

… if the person–

(a) is found to have committed a breach of discipline under section 10, or

(b) becomes a mentally incapacitated person, or

(i) in New South Wales of an offence punishable by imprisonment of 12 months or more, or

(ii) elsewhere than New South Wales of an offence that, if committed in New South Wales, would be punishable by imprisonment for 12 months or more, or

(d) in the opinion of the responsible authority, is no longer a fit and proper person to be a member of the brigade.

To find that a person has ‘committed a breach of discipline’ requires adherence to the procedures set out in r 10 and Service Standard 1.1.2 Discipline (see r 10(2)(a)). A finding that a person is ‘no longer a fit and proper person to be a member of the brigade’ is a much more generic process but not without some legal oversight – ‘it could not extend to irrelevant considerations such as their shoe size or the cut of their hair’ (Clusters and Local Commanders in the NSW SES (edited and corrected 7 May 2022) (May 4, 2022)).

Responsible authority for a rural fire brigade

The critical question then is ‘who is the responsible authority for a rural fire brigade?’ The Act talks about local authorities forming brigades (s 15). For the purposes of the Act ‘local authority’ means (Rural Fires Act 1997 (NSW) Dictionary, definition of ‘local authority’), relevantly the relevant council or, in the case of the NSW Western district, the person appointed for that purpose or, in the case of Lord Howe Island, the Lord Howe Island Board.

In an earlier post – ‘How autonomous are NSW Rural Fire Brigades?’ (February 25, 2015) I said:

The Act refers to brigades formed by local authorities but, in reality, there are no such brigades. RFS Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades says, at [1.2]:

Under section 4.2(a) of the Rural Fire District Service Agreements (RFDSAs) and sections 15 to 17 of the Rural Fires Act 1997 (the Act) the functions of the Local Authority in the formation and disbandment of Brigades has been conferred on the Commissioner of the New South Wales Rural Fire Service (NSW RFS).

The Service Standard 2.1.1 that I was quoting has been replaced by Service Standard 2.1.1 Formation and Disbandment of Brigades and Groups of Brigades v2.2 (7 June 2022). This document no longer refers, specifically to the Rural Fire District Service agreements. The current Service Standard 2.1.1 (at [2.1]), and s 15(4) of the Act, say:

The Commissioner may form a Brigade for a Rural Fire District if any Local Authority requested to form a Brigade for that district refuses or fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner.

Even though the Service Standard does not refer to Rural Fire District Service Agreements, it does not mean that they do not exist. Section 12A of the Act empowers the Commissioner to enter into a Rural Fire District Service Agreement. That Agreement may ‘… specify functions imposed on the local authority by or under this Act that are to be exercised by the Commissioner’ (s 12A(2)(a)). Service Standard 1.3.4 Rural Fire District Service Agreements says:

1.2 The Rural Fires Act, (the Act) imposes a range of functions on both local authorities and the Commissioner.

1.3 In accordance with section 12A of the Act, the Commissioner of the New South Wales Rural Fire Service (NSW RFS) may enter into a rural fire district service agreement (RFDSA) with any local authority or authorities responsible for a rural fire district or districts.

1.4 In accordance with section 14 of the Act, the Commissioner has delegated to designated members of the NSW RFS many of the functions: (a) imposed upon the Commissioner by the Act; and (b) which he or she has agreed to exercise pursuant to the provisions of the RFDSAs.

1.5 The delegations made by the Commissioner are set out in Service Standard 1.3.1 Delegations and Authorisations.

Service Standard 1.3.1 Delegations and Authorisations shows that a number of functions including the power to form a brigade (s 15) and to remove a member from the register of members (r 8) have been delegated to staff within the RFS.

It follows that the Commissioner is the responsible authority for a rural fire brigade where, either, a local authority has entered into a service agreement which provides that the local authority’s functions with respect to forming a brigade and maintaining the register of members is to be exercised by the Commissioner or where the local authority has refused or failed to establish a brigade after having been directed to do so. I cannot find a list of local authorities that have entered into a Rural Fire District Service Agreement, but I imagine it’s all of them.

Where the Commissioner is the responsible authority, the power to remove the member’s name has been delegated to the relevant Area Commander and Director Area Operations (Service Standard 1.3.1 Operational Delegations and Authorisations v3.7 (7 June 2022).

Conclusion

The Commissioner gets the power to remove a member from the register of members by virtue of a relevant Rural Fire District Service Agreement where a local authority has delegated those functions to the Commissioner or by virtue of s 15(4) if the local authority has refused or failed to establish a brigade when directed to do so. In those cases, the Commissioner is the ‘responsible authority for a rural fire brigade’ and can exercise the powers to remove a person’s name from the register of members as set out in regulation 8(2).

Categories: Researchers

RFDS and the Mental Health Act 1997 (NSW)

23 February, 2024 - 14:24

Today I’m asked

… two questions … [on] the role of Royal Flying Doctor Service (RFDS) and mental health in rural NSW.

Firstly do RFDS nurses have the authority to section mental health patients without a doctor present or would they have to wait for a doctor, ambulance or police to come and section a patient.

Secondly would they be able to transport a patient to a public mental health facility due to their role as 24/7 medical response in rural areas?

The use of the phrase ‘section mental health patients’ is old fashioned language but what I understand the question to mean is ‘can an RFDS nurse detain a competent patient in order to treat their mental illness or mental disorder?’ and ‘can the nurse authorise the staff of a mental health facility to continue that detention?’

The short answer is ‘no’. The Mental Health Act 2007 (NSW) says police, and arguably ambulance officers, can detain a person who is mentally ill or mentally disordered (ss 22 and 20, respectively) and take them to a mental health facility. A person may also be detained on the basis of a certificate issued by a medical practitioner who has examined the patient (s 19). That examination may be in person or remotely (s 19A).

Once at a mental health facility a person may be detained on the basis of the information provided by the police or ambulance officers (ss 18(1)(b) and (c)) or on the basis of the medical practitioner’s certificate (s 18(1)(a)).

There is nothing to say a nurse can detain a patient, nor anything that a ‘person may be detained in a declared mental health facility’ on the basis of information provided by, or on the opinion of, a registered nurse.

If a person is lawfully detained (eg a medical practitioner has issued a certificate under s 19) then s 81(1) says the following persons can transport the patient to the mental health facility:

(a) a member of staff of the NSW Health Service,

(b) an ambulance officer,

(d) a person prescribed by the regulations.

An ambulance officer means a member of NSW Ambulance (see s 4, definition of ‘ambulance officer’ and Health Services Act 1997 (NSW) s 67A).

The Mental Health Regulation 2019 (NSW) r 45 says, that for the purpose of s 81(1)(d) ‘a person who provides a transport service approved by the Secretary for the purposes of that section is prescribed.’

The RFDS can ‘transport a patient to a public mental health facility’ if they have been approved by the Secretary of Health for that purpose.

Other states

The answers to these questions depend on the terms of the Mental Health Act 1997 (NSW). The RFDS operates across Australia and the answer may be different in different jurisdictions. Further if the RFDS can lawfully ‘section’ a person in another state/territory they may also be able to transfer them to NSW on the basis that the person is lawfully detained in and being transported from that other state. The answer above is an answer only in NSW.

Conclusion

In NSW, RFDS nurses do not have the authority to section mental health patients (if, by that, we mean detain them and provide treatment to a competent person without their consent and/or authorise the staff of a mental health facility to detain them). To do that would require action by police or ambulance officers or an certificate by a medical practitioner.

The RFDS is able to transport a patient to a public mental health facility within NSW if they have been approved by the Secretary of Health for that purpose.

Categories: Researchers

Presumption of mental capacity in the Mental Health Act 2014 (WA)

20 February, 2024 - 11:48

The general rule is that a patient is presumed to have the capacity to make medical and other decisions on their own behalf unless and until it is established that they do not have that capacity. Today’s correspondent asks whether that has been reversed in WA by the Mental Health Act 2014 (WA) s 15(1). The section says:

For the purposes of this Act, a person has the capacity to make a decision about a matter relating to himself or herself if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to —

(a) understand any information or advice about the decision that is required under this Act to be provided to the person; and

(b) understand the matters involved in the decision; and

(d) weigh up the factors referred to in paragraphs (a), (b) and (c) for the purpose of making the decision; and

(e) communicate the decision in some way.

My correspondent says:

In general of course all people have the presumption of capacity under common law until that presumption is rebutted.

Practically that means for clinicians the onus is on us to disprove that presumption through our assessment of a patient. That’s very reasonable though … this creates those problematic situations where we haven’t had time to fully assess a person’s capacity or they won’t cooperate with that assessment and then they wish to leave. In general, the presumption of capacity applies and we generally can’t hold them against their will…

To me this [s 15] essentially reverses the presumption of capacity so in grey area situations where the clinician is unsure or hasn’t had time to assess the patient (or patient won’t cooperate) then as far as the MHA is concerned, the patient does not have decision making capacity.

What do you think of this? Would you agree this section 15 of the WA MHA is effectively reversing the presumption of capacity with respect to mental health patients?

The Mental Health Act

One has to admit that s 15 is not the norm. One would expect the section to say a person has capacity unless a relevant person has determined that they do not have any of the capacities listed in (a) to (e); not that the person must be satisfied that they do.

I can see the argument and its appeal to WA doctors (see No power to detain a patient just because it’s good for them (January 22, 2023) and Publication on detaining patients in the ED (August 29, 2023)) but like all exercises in statutory interpretation the section has to be read in context. In particular s 15 appears in Part 5, Division 1 of the Act. That Division is titled ‘Decision making capacity generally’. Also in that Division is s 13(1) which says:

For the purposes of this Act, an adult is presumed to have the capacity to make a decision about a matter relating to himself or herself unless the adult is shown not to have that capacity.

Both s 13 and s 15 have to have work to do. An interpretation that says they are inconsistent (one presumes capacity, the other presumes incapacity) cannot be right.

The Explanatory Memorandum filed with the Mental Health Bill 2013 (the Bill that became the Act of 2014) says:

Clause 13 relates to an adult making a decision about a matter with respect to himself or herself. The Act creates a presumption that an adult has decision making capacity, unless shown not to have that capacity. Whether an adult has the requisite capacity to make a decision under the Act is a decision for the person or body making a determination under clause 15…

Clause 15 is a threshold test in that it sets out the requirements for a person to be considered to have capacity to make decisions under the Act that are not treatment decisions. The intention is to require decision makers to consider whether or a not a person who is being asked to make a treatment decision understands the nature and consequences of the decision they are being asked to make. If an adult does not meet the requirements in clause 15, then the presumption in clause 13 is rebutted in relation to that adult, ie they do not have decision making capacity…

As I read it, s 13 of the Act (cl 13 of the Bill) reinforces the presumption of capacity. If a ‘person who is performing a function under this Act that requires that other person to determine’ whether the patient does in fact have capacity they have to examine them. They do not have to be ‘satisfied’ that the person does not have capacity, they have to be ‘satisfied’ that they do have all the capacities listed. In a sense that shifts the ‘onus of proof’ – the question is not ‘are you sure they don’t have capacity?’ but rather ‘are you sure they do?’

Further the Act has limited application in a hospital ED where a patient may want to leave before they have been examined or may not want to co-operate with the staff. The Mental Health Act is about the treatment of mental illness. A person is mentally ill if and only if (s 6; emphasis added)):

… the person has a condition that —

(a) is characterised by a disturbance of thought, mood, volition, perception, orientation or memory; AND

(b) significantly impairs (temporarily or permanently) the person’s judgment or behaviour.

A person who is intoxicated or has a head injury is not mentally ill.

Section 15 is about capacity to make decisions generally. Section 18 is about the capacity to make medical treatment decisions, but it is in similar terms to s 15. It says ‘A person has the capacity to make a treatment decision … if another person who is performing a function under this Act that requires that other person to determine that capacity is satisfied that the person has the capacity to’ understand and weigh up the factors listed in s 18(a) to (e). For the purposes of the Mental Health Act, ‘treatment’ means (s 4):

…the provision of a psychiatric, medical, psychological or psychosocial intervention intended (whether alone or in combination with one or more other therapeutic interventions) to alleviate or prevent the deterioration of a mental illness or a condition that is a consequence of a mental illness, and does not include bodily restraint, seclusion or sterilisation;

The Guardianship and Administration Act

The Guardianship and Administration Act 1990 (WA) also deals with medical treatment which is defined (s 3) to mean:

(i) medical or surgical treatment, including a life sustaining measure or palliative care; or

(ii) dental treatment; or

(iii) other health care;

Section 4(3) says:

Every person shall be presumed to be capable of —

(a) looking after his own health and safety;

(b) making reasonable judgments in respect of matters relating to his person;

(d) making reasonable judgments in respect of matters relating to his estate,

until the contrary is proved to the satisfaction of the State Administrative Tribunal.

Urgent treatment can be given to a person who cannot make ‘reasonable judgments in respect of the treatment’ (s 110ZI). What constitutes ‘reasonable judgments’ is not defined but I would suggest a court would not accept that it means a judgement that the doctors agree with; that would be inconsistent with a fundamental principle of law and bio-medical ethics – the respect for patient autonomy. I would infer that a ‘reasonable judgement’ is one where the patient has the capacity to receive and consider advice before making a decision to accept or reject treatment even if ‘the reasons for the refusal were rational or irrational, unknown or even non-existent’ (In re T (Adult: Refusal of Treatment) [1992] EWCA Civ 18 cited with approval in H v AC [2024] NSWSC 40). The test is a functional one – ie is there capacity – not an outcome test – is the decision one that others consider ‘a good or wise decision’ (PBU & NJE v Mental Health Tribunal [2018] VSC 564).

Discussion

Although the language is ambiguous, I do not think s 15 of the Mental Health Act 2014 (WA) reverses the presumption of capacity. It may lower the threshold to be met to set aside the presumption but to in deny the presumption would be inconsistent with s 13.

For doctors in WA ED departments, even if it did, it would only do so with respect to patients that doctors suspect are mentally ill, not who require other treatment. A person who has arrived in ED but wants to leave is presumed to be competent under the Guardianship and Administration Act 1990 (the ‘GA Act’). In MGP [2020] WASAT 65, at [34] Presiding Member Marillier said:

… The statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the act. Because of the significant consequences for an individual of having their decision-making capacity removed from them and a substitute decision-maker appointed for them under the GA Act, clear and cogent evidence is required to rebut the statutory presumption of capacity.

Consistent with that is my suggested interpretation of the term ‘reasonable judgments’ in relation to health care. The fact that a person does not want to accept treatment offered, or remain in an ED until examined, is not sufficient to show that they are not capable of making ‘reasonable judgements’ even if in the doctor’s opinion they are not making reasonable judgements.

Conclusion

My conclusion is that the effect of ss 15 and 18 of the Mental Health Act 2014 (WA) is that there is a lower bar to overcome the presumption of capacity when it comes to people who are mentally ill and where treatment for a mental illness is being considered, than there is in other cases of medical treatment where ‘clear and cogent evidence is required to rebut the statutory presumption of capacity’.

But even under the Mental Health Act there would have to be some reason – some evidence – to show that the person had considered the factors listed and why they came to the conclusion that they were not satisfied that the person had all of the capacities listed. If they just hadn’t yet examined the person that would mean everyone in the ED, in fact everyone in the community, would be presumed to be not competent which would be an anathema to law, ethics and community standards.

Categories: Researchers

The rules of evidence and a NSW RFS disciplinary panel

16 February, 2024 - 12:04

Today’s question raises further issues about ‘natural justice’ in disciplinary hearings in the RFS. The question begins:

Your recent articles regarding the failed litigation arising from the Hawkesbury District [RFS complaint ends up in court (February 20, 2023) and Appeal by RFS volunteers over management of complaints (December 28, 2023)] has given me reason to read up on the Discipline Service Standard.

I found the context of SS 1.1.2-3 “Disciplinary Hearings” to be rather disturbing.

Section 2.1(a) requires the panel to “observe the rules of natural justice”. A footnote then refers to an information sheet, “Natural Justice”.

Section 2.2 states: “the disciplinary panel is not bound by the rules of evidence”. A footnote states “(T)he rules of evidence that apply in a court do not apply to a disciplinary hearing”. It is presumed that this implies the Evidence Act 1995 (NSW).

What disturbs me is that a disciplinary panel is able to make findings and impose penalties, yet there is an absence of guidance on how a panel should operate. It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”. There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.

The “Natural Justice” information sheet (from 2009) refers to “Fact Sheet 14” published by the NSW Ombudsman. This Fact Sheet appears to superseded / no longer published, however the “Guideline C1 People the subject to a report” and “Good conduct and administrative practice” appears to be the current Ombudsman documents relating to the application of Natural Justice. Footnote 48 (pg. 67 of the “Good conduct” document) provides some caselaw to the effect that “it is an error of law to make a finding of fact for which there is no probative evidence”.

The Evidence Act sets a clear path for those involved in finding matters of fact based on the evidence that is provided and tested. It appears that by exorcising this guidance, and a lack of useful guidance in the SS is problematic. According to a report arising from a survey to review the way grievance and discipline matters are dealt with there was a lack of confidence in the process by the membership. In the review, no comments appear to be made regarding the conduct of the processes under the SS, including disciplinary panels (other than construct of the panel membership). It is also worthwhile noting that thus far there appears no further (obvious / publicised) action has been taken since the report’s publication in mid-2021.

NB I also found the following links of interest, particularly given Clayton Utz’s deep involvement with the NSW Government agencies and particularly the RFS.

Public Law Essentials 05: Procedural fairness https://www.claytonutz.com/insights/2022/august/public-law-essentials-05-procedural-fairness
Failure to afford procedural fairness will generally be material: High Court https://www.claytonutz.com/insights/2022/august/failure-to-afford-procedural-fairness-will-generally-be-material-high-court
The right to reputation: natural justice and human rights issues in administrative and regulatory investigations https://www.claytonutz.com/insights/2020/october/the-right-to-reputation-natural-justice-and-human-rights-issues-in-administrative-and-regulatory-investigations

Given the lack of effective guidance, is it realistic to view the current disciplinary processes within the RFS as being able to be easily manipulated to weaponise the process or “engineer a result” to the detriment of a respondent? Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?

The Evidence Act 1995 (NSW)

The Evidence Act does set out the rules of evidence as applied in NSW courts. It is the implementation of a Uniform Evidence Act that is meant to ensure the law is similar across Australia. So far, the Uniform Act has been adopted by the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory.

The rules of evidence are complex and require many years of practice to fully understand. It is not surprising that an internal RFS panel is not expected to be bound by the rules of evidence.

Further the fundamental rule of evidence law is that relevant evidence is admissible, irrelevant evidence is not (Evidence Act 1995 (NSW) s 56). That means that the rules of evidence that follow are designed to keep out evidence that is otherwise relevant, that is (s 55):

… evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

The reasons for excluding evidence are many and varied but generally relate to whether it can be relied upon, whether the risk of allowing the evidence exceed the potential benefit and sometimes whether the evidence is in the right form.

The rules are most strictly applied in criminal cases where the Crown bears the burden of proving its case beyond reasonable doubt; and in jury cases where jurors are having their first experience in hearing and assessing evidence. Judge alone cases often take a more flexible approach where the judge will admit the evidence but then decide what value to give any controversial evidence.

The Evidence Act ‘applies to all proceedings in a NSW court’ (s 4). An RFS tribunal or panel is not a court. The statement in the service standard that a tribunal is not bound by the rules of evidence is a statement of the law rather than the RFS ‘exorcising’ the Act that would otherwise apply.

That the rules of evidence do not apply outside a court room is not unusual. Coroners are not bound by the rules of evidence (Coroners Act 2009 (NSW) s 58) nor the is the NSW Civil and Administrative Tribunal (Civil and Administrative Tribunal Act 2013 (NSW) s 38). These tribunals have much more extensive jurisdiction than an RFS panel.

Natural justice and procedural fairness

The rules of natural justice are fundamentally a right to be heard before an adverse decision is made and the right to an unbiased decision maker. Procedural fairness requires that a person be informed of the allegations against them and are given the opportunity to respond to them. It does not mean they have to be given access to every document and internal memo, but they have to know what is alleged – see Accessing information relating to complaints and disciplinary proceedings (September 28, 2018).

The rules of natural justice and procedural fairness apply regardless of whether the Evidence Act applies. Also applicable will be the rule in Briginshaw v Briginshaw (1938) 60 CLR 336. In a paper Briginshaw in Land and Environment Court Proceedings – Introductory Observations from the Judicial Perspective, Justice Rachel Pepper explained the effect of Briginshaw. She said (at [5]-[8]):

The seminal statement or explanation derives from Dixon J in Briginshaw v Briginshaw, where his Honour stated that “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence … It cannot be found as a result of a mere mechanical comparison of probabilities.” His Honour went on to explain that the standard is one of “reasonable satisfaction”:

…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer…. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

… The Briginshaw principle so-called is understood as requiring care in cases where serious allegations have been made or a finding is likely to produce grave consequences…

… [It] does import some flexibility to the civil standard by directing attention to the strength of the evidence required in attaining the civil standard of proof, focusing on the probative value of such evidence. Essentially, it goes to the degree of persuasion of the mind. Thus the High Court in Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd] stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. In short, the more serious the allegation, the more probative or stronger the evidence needs to be.

The Briginshaw principle is enshrined in the Evidence Act (s 140(2)) but the fact that the rule applies in civil proceedings where the rules of evidence apply does not meant that it does not apply in other cases. A tribunal will need to be satisfied that there is evidence – something upon which they can be satisfied that the allegation is made out – before they can find an allegation proved and that is true even if the evidence might not be admissible in a court.

Discussion

An RFS tribunal may not be bound by the rules of evidence but that does not mean it is a law-free zone. My correspondent says:

It is assumed that the disciplinary panel would make a finding “on the balance of probabilities”, yet there is no guidance on how they should consider whatever is put in front of it, either by the complainant, investigator or the person subject of the complaint, and to what weight it should be given in order for there to be “a balance”.

But there is guidance in the decision in Briginshaw v Briginshaw. One might think that it is a long stretch to assume that the panel knows that case, but it is equally a long stretch to assume that they would know the rules of evidence if they were bound to apply to the Evidence Act.

Further it is said:

There is no ability ensuring a fair hearing (or that one is held), that the evidence provided is able to be adequately tested by the respondent.

But there is, the decisions may be subject to judicial review and the rules of natural justice and procedural fairness must have been applied.

The Evidence Act does not set ‘a clear path for those involved in finding matters of fact based on the evidence that is provided and tested’. It provides rules on what evidence can be used, not how it is to be used, what weight is to be given to evidence or how a tribunal is to make use of the evidence in coming to its final decision. I think my correspondent expects too much from the Act.

I’m asked:

I cannot see that in the SOP nor in the fact that the panel is not bound by the rules of evidence there is an ability to easily manipulate the process. The panel is made up of three volunteers – peers of the people likely to be before it – (SS 1.1.2-1 [2.1] and [2.9]). I don’t know why anyone would assume those members would not come to the task with an open mind, a desire to act in good faith and in accordance with the service standard which directs them to apply the rules of natural justice and to avoid conflicts of interest (see [2.17]).

As for the question:

Would the current position meet the requirements to protect an individual’s reputation (my interpretation of the driver behind the unsuccessful Hawkesbury litigation) and otherwise be defensible if a judicial review is pursued?

I would have thought so; in fact, I don’t understand why the Hawkesbury litigant’s did not think being exonerated by the process was not sufficient to protect their reputation. If their reputation has been harmed surely it was made worse by going to court and having the adverse findings as their credit publicly recorded by the judge? The process if applied according to the service standard would be absolutely defensible, as indeed it was defended in the cases referred to at the start of this post.

Categories: Researchers

Paramedic complaint about residential aged care

15 February, 2024 - 11:47

Today’s question relates to a paramedic’s right and duty to report inappropriate practice within the aged care system. Today’s correspondent says:

I met with the Aged Care Quality and Safety Commission, as a paramedic, not as a representative of my jurisdictional service, regarding the practices of many RACF [Residential Aged Care Facilities] relying on ambulance or ED to attend to any catheter (SPC [Suprapubic Catheter] or IDC [Indwelling Urinary Catheter]) or Gastronomy tube (PEG [Percutaneous Endoscopic Gastrostomy]) issues. This practice can see significant delays in care, with the Aged Care Quality and Safety Commission saying that facilities need to provide these services on site and is part of their responsibilities.

Question

If a facility is not providing the required level of care due to a facility policy, let’s say a nursing home having a policy to not catheterise a male patient, simply because they are male, can jurisdictional ambulance service stop their clinicians from reporting these issue to the Aged Care Quality and Safety Commission or NDIS?

I think ambulance services forget the AHPRA code of conduct in such situations.

Health Practitioner Regulation National Law

I’m not sure of my correspondent’s jurisdiction so I will use NSW law as my example. Registered health practitioners have an obligation to report ‘notifiable conduct’ by another health practitioner. Notifiable conduct means (Health Practitioner Regulation National Law (NSW) s 140):

(a) practising the practitioner’s profession while intoxicated by alcohol or drugs; or

(b) engaging in sexual misconduct in connection with the practice of the practitioner’s profession; or

(c) placing the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or

(d) placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.

Where a nurse is employed in an RACF but doesn’t provide the relevant services because of their employer’s policy choices and therefore inadequate resources, then none of those provisions apply. The RACF may be failing in its duties but the nurse is not engaging in reportable conduct.

Aged Care Quality of Care Principles (2014)

These principles are made under the Aged Care Act 1997 (Cth). They require each provider to provide the services listed. Part 3 of Schedule 1 sets out the care services to be provided to all residents who need them. It says, amongst other things, that a residential aged care facility must provide nursing services (see [3.8]). Nursing services are:

… carried out by a nurse practitioner, registered nurse or enrolled nurse, or other professional appropriate to the service (for example, medical practitioner, stoma therapist, speech pathologist, physiotherapist or qualified practitioner from a palliative care team), acting within their scope of practice.

Services may include, but are not limited to, the following:

…

(b) insertion, care and maintenance of tubes, including intravenous and naso‑gastric tubes;

On one argument, an RACF may say that calling an ambulance to have a patient taken to hospital to have their catheter changed is indeed the RACF ensuring that the service is provided. (Provided the RACF is paying for the ambulance transport etc. If it’s being paid for under arrangements to provide ambulance free of charge to pensioners, by Medicare or other arrangements then the RACF is charging the client for the service that someone else, ultimately the Commonwealth, is paying for!)

Assuming that it is a breach of the principles, what is a paramedic’s obligations? The AHPRA code of conduct says paramedics must work respectfully with other health practitioners. It says:

5.1 Respect for colleagues and other practitioners

Good care is enhanced when there is mutual respect and clear communication between all health professionals involved in the care of the patient…

5.2 Teamwork and collaboration

Many practitioners work closely with a wide range of other practitioners, with benefits for patient care.

Effective collaboration is a fundamental aspect of good practice and teamwork. Good patient care requires coordination between all treating practitioners. Healthcare is improved when there is mutual respect and clear, culturally safe communication, as well as an understanding of the responsibilities, capacities, constraints and ethical codes of each other’s health professions. Working in a team or collaboratively does not alter your personal accountability for professional conduct and the care you provide…

Principle 6 says:

Practitioners have a responsibility to contribute to the effectiveness and efficiency of the healthcare system and use resources wisely.

Good practice under this principle includes upholding ‘the right of patients to gain access to the necessary level of healthcare, and, whenever possible, help them to do so’ [6.1(b)]. Paragraph [6.2] Health Advocacy says ‘… good practice includes that you use your expertise and influence to protect and advance the health and wellbeing of individuals, as well as communities and populations.’

It is therefore consistent with the Code to raise concerns, but it has to be done carefully. Simply reporting an RACF to the Aged Care Quality and Safety Commission or NDIS may not be appropriate if there has not been an attempt to raise concerns with the RACF and understand if this is an issue of management choice or perhaps this day there was a particular staffing or other issue. It may also impact upon the trust if RACF staff feel they cannot call for assistance when that is required. One can see that escalating concerns through the ambulance chain of command so that it is the ambulance service raising the matter with the RACF management and with the hospital – to bring the entire health service together – may be a better approach.

I also note that the Aged Care Quality and Safety Commission says “If you’re raising a concern or making a complaint on behalf of someone else, make sure they or their representative knows this. They have a right to know about your concerns and be involved”. That may mean if you want to report ‘we were called to transport Patient Jones to hospital for a service that should have been provided in the RACF’ you may need to speak to Patient Jones or their family first to let them know the concern; and they may be better place to raise the concern with the RACF or the Commission.

But the simple answer to the question asked is I cannot see how a jurisdictional ambulance service could ‘stop their clinicians from reporting these issue to the Aged Care Quality and Safety Commission or NDIS’.

It seems to me that the way they could come close to that is by a direction to employees not to report such systemic issues but to raise it through the ambulance service. An employee must comply with lawful and reasonable directions of their employer but to meet that threshold there would, in my view, need to be a policy and process by which the administration received the concerns and dealt with them. A blanket ‘do not report’ would not be reasonable. Clearly an ambulance service cannot stop its staff making mandatory notifications but as argued above, they are not likely to be relevant here.

Conclusion

An ambulance service could try to stop employees raising concerns about care provided by other institutions but that could only be reasonable if the service itself had a policy to receive those concerns from its staff and to raise them with the other service provider in order to enhance the use of health resources and appropriate patient care.

Even with that I don’t see how they could really stop a good faith report but such a report may be professionally problematic without some attempt to raise it with the RACF and other professional staff to understand the circumstances and to have the concerns addressed.

Categories: Researchers

Tasmanian paramedic banned for 2 years

11 February, 2024 - 11:32

In Paramedicine Board v Hampton [2024] TASCAT 22, the Tasmanian Civil and Administrative Tribunal (TASCAT) had to deal with a paramedic who admitted that he had ‘provided false information regarding the amount of medication administered to a three month old baby while on route to the Royal Hobart Hospital (RHH) and second, encouraged, advised or directed a junior paramedic under his supervision to falsify clinical records in relation to the doses of medication recorded in the patient’s records.’

The incident occurred in December 2019. Paramedics had been called to a baby in cardiac arrest. On arrival they observed a premature baby that had been discharged from hospital only 24 hours earlier. The baby was ‘displaying seizures’ ([5]). Paramedics determined to transport the baby to hospital and called for backup from an intensive care paramedic. Mr Hampton was the on-call ICP. He had been on duty for 11.5 hours. He got home at 7:15pm and was paged to respond at 7:30pm ([6]). He met the ambulance en route. The paramedics in the ambulance had stopped the vehicle to administer midazolam but they had made an error in their calculations where they calculated the dose, based on the babies weight, in mls rather than mgs. They drew up 0.45mls when they should have been giving 0.45mg. The correct dose should have been 0.09mls. 0.45mls gave a dose of 2.25mg or five times the correct dose. Mr Hampton did not check the dose calculated by the other paramedics.

After patient handover the treating paramedics realised their error and approached Mr Hampton. At [12] when setting out the agreed facts, Deputy President Clues said:

[Mr Hampton] … told the other paramedics that he would inform the RHH ED treating team (RESUS) of the mistake. The respondent advised RESUS that the patient had been given 2 doses of midazolam, each dose being 0.45mg.

By this conduct, the respondent knowingly provided false information regarding the amount of medication administered to the patient while in transport to RHH.

[He then] … told a junior paramedic in the team to state in the electronic patient care record (ePCR) that the patient had been administered two doses of midazolam, each dose being 0.45mg…

Later, while the junior paramedic was in the write-up area, the respondent asked to speak with her. The respondent again told the junior paramedic to state in the ePCR that the patient had been administered two doses of midazolam, each dose being 0.45mg.

By this conduct, the respondent encouraged, advised or directed a junior paramedic under his supervision to falsify clinical records in relation to the doses of midazolam recorded in the patient’s ePCR.

It was admitted that this conduct was a breach of the Interim Code of Conduct for Paramedics that was then in force. The Tribunal was satisfied that the respondent’s conduct amounted to Professional Misconduct ([19]).

The respondent said that it was agreed that the hospital staff should be advised of the error. He went to the ED to do that but ‘It appeared the baby was safe. The effective life of midazolam (half life) had passed without any detrimental effects. To be very clear – the baby was safe – the effective life has passed so the overdose did not have any consequence’ ([21]). At [23] his response to a 2022 interview was quoted. At that time he said:

I felt this crew knew what they had done quite well and they didn’t really need a long, laborious clinical examination of it, given, that it was a baby and it was upsetting for them. Now all of that I assumed probably within 5, 6 seconds. It was something I spent an hour thinking about. It was just, this is what I am going do [sic]. This is what we’re gonna do, the damn thing can go away. Otherwise, you’re gonna sit here and savour it for you know, two years, and guess what happened, been savouring it for two years.

The text above is how it appears in the judgement, but presumably it is meant to say ‘It was not something I spent an hour thinking about’?

There was a concern that the respondent’s actions reflected a ‘punitive/negative safety culture’ in Ambulance Tasmania. Whether there was or was not such a culture, the fact was that the respondent was a clinical support officer which put ‘him within the management structure responsible for safety event investigation and follow up’. Deputy President Clues said (at [25]) ‘Whilst it may be possible that an adverse safety culture did exist at Ambulance Tasmania, it does not provide an excuse for the respondent’s actions.’

The respondent said that he was stood down from work five days after the event. There was a clinical review which he cooperated with. In February he came to work expecting to be given non-clinical duties pending the outcome of the review. On his first day back he had been stood down and he was escorted off the premises.

I can say that my soul was destroyed the day this happened. I was devastated by the severity of the reaction by Ambulance Tasmania despite my admission to parts of the allegations that were made. I have never set foot back in the place since…

It has been a difficult retirement, and not what I imagined. I have been embroiled in a lengthy and (at times) intense investigation process for the last 4 years. It took 18 months for the Ambulance Tasmania external investigation to complete and I had to request, if not actually demand, the clinical review to be sent to me. I decided to resign in 2021, with an assumption and hope that the matter would soon be over. Yet AHPRA then started its investigation, which has only extended my anguish longer. I can only hope the matter will be over by the end of the year.

I am retired. I will not return to work as a paramedic, or as a health worker.

At [30]-[33] the Tribunal said:

The Tribunal accepts that the respondent has suffered personally since the events occurred. The Tribunal also accepts that the respondent has an exemplary and very lengthy record of service spanning four decades. He has no disciplinary history. He understands the severity of his actions and regrets what he did. The Tribunal accepts that the respondent made a “silly impetuous decision”.

The Tribunal does note that personal matters such as shame, personal ordeal or financial difficulty are not relevant to its determination of the appropriate sanctions to be imposed…

In this case the conduct was serious and there is a significant risk of harm to patients if it were to be engaged by other paramedics. There is a need for general deterrence in order to protect the public and maintain the public’s confidence in and the reputation of the profession of paramedicine.

The parties agreed ([38]) to the following orders, which the Tribunal made (at [40]):

(a) That the respondent be reprimanded.

(b) That the respondent be disqualified from applying for registration as a registered health practitioner for a period of two years.

Discussion

To quote (out of context) Pink Floyd’s song ‘One Slip’:

One slip and down the hole we fall
It seems to take no time at all
A momentary lapse of reason
That binds a life for life …’

A career ruined by a ‘spur of the moment’ decision to try and protect the crew from the very consequences that Mr Hampton suffered. But it demonstrates the seriousness of such actions and the need for paramedics, and all professionals to be upfront and honest in particular when errors occur. There is a push for ‘open disclosure’ of errors. Deciding not to tell family, or other members of a health team, that an error has been made is the antithesis of that approach.

The seriousness of his actions was compounded by his instructions to a junior paramedic to falsify the clinical records. As a clinical support officer, it was incumbent on Mr Hampton to lead by example. If there was a punitive/negative culture in Ambulance Tasmania it was his duty, as an officer in that process, to work against that and to support the paramedic to record the errors and then support her through the process and if necessary, advocate for a just learning culture.

But even so I am forced, again, to question why resolution of these matters take so long (4 years) when Mr Hampton cooperated with the various inquiries and admitted his errors. Whatever he did and whatever penalties imposed, the event and its trauma is compounded by having to ‘savouring it for [four] years’. Regardless of this event, I think we as a community can still thank Mr Hampton for his ‘exemplary and very lengthy record of service spanning four decades’ and wish him well in his retirement.

Categories: Researchers

Ambulance Victoria charging for treatment without transport

8 February, 2024 - 06:00

Today’s post revisits the issue of paying for ambulance services and in fact first appeared as a comment on the posts Paying for ambulance services (October 4, 2014) and Ombudsman investigates Ambulance Victoria’s practice of charging for non-transport services (June 13, 2019). The comment was:

I called 000 in suburban Vic[toria] as I was home alone, it was 4am and I needed medical advice about scary nausea and vomiting, I repeatedly said do not call an ambulance and asked if there was any other way of seeking medical advice regarding if I should go to a hospital. Call taker signed me up and put me on a waitlist to speak with a GP via teleconference (they must refer to this 24hour GP service) but it would be a 60 min wait time. I fell asleep before the teleconference with this 24 hour GP and awoke to 2 paramedics knocking on my door at 8am saying it was unresolved on their system so they were sent to check on me. They took my vitals and details and now I have been invoiced despite not authorizing any ambulance service? Can I make a VCAT claim?

Important Disclaimer

This is of course not the place for legal advice. My correspondent should seek advice from a lawyer practising in Victoria – eg a community legal service – to get specific advice on their particular circumstances as well as advice on how to respond to any claims from AV and local advice about the jurisdiction and practices of VCAT and the Victorian Magistrates Court. They should not rely on what follows to make any decision on how to resond to any claim for payment from Ambulance Victoria (AV).

Ambulance fees

The right of Ambulance Victoria to charge, and the obligation to pay, for ambulance services is set out in the Ambulance Services Act 1986 (Vic). Section 16(a) says ‘An ambulance service may— (a) charge reasonable fees for services rendered…’ The Secretary of the Department of Health and Human Services may ‘give directions to an ambulance service relating to— (a) the fees that the service may charge…’ (s 10(5)). The fee schedule is available at https://www.health.vic.gov.au/patient-care/ambulance-fees and see also https://www.ambulance.vic.gov.au/transport/transport-faqs/.

Section 10(8) says:

If a person has been transported by an emergency ambulance service, the fee charged under a direction given by the Secretary under subsection (5)(a) for that service, is payable by that person whether or not the person consented to the provision of the service.

Although there is a fee for ‘Treatment Without Transport’ (currently $586) there is no clear statement – no equivalent of s 10(8) – to say who, if anyone, has to pay that fee.

The Ombudsman’s report (2019)

The Ombudsman’s report into the practice of charging patients for treatment without transport (Victorian Ombudsman, Investigation of a complaint about Ambulance Victoria (28 May 2019) noted that in a letter to that complainant, Ambulance Victoria relied on s 10(8) as authority to charge the fee for treatment without transport. The Ombudsman quoted s 10(8) and continued (at [67]-[68]):

When asked to explain why the section was misquoted, AV wrote:

“I have also reviewed Sect 10(8) of the Ambulance Services Act. You are correct in that it refers to “transport” rather than attendance. As it’s currently written, the Act does not provide legislative standing to charge ‘non-consenting’ patients for ambulance attendance only.

“I acknowledge the reference to S.10(8) should not have been included in the letter to [Simon], given he was not transported. This was an oversight of the author and will be raised with him.”

In response to the draft report, AV acknowledged the practice of relying on section 10(8) of the Ambulance Services Act to bill for Treatment without Transport was incorrect and gave an undertaking to counsel staff on this issue.

The Ombudsman recommended that:

Further to section 10(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) note that full, free and informed consent for Treatment without Transport may include conveying relevant information about potential costs, and consider ways to adequately inform patients accordingly.

VCAT and the Magistrates court

VCAT only has jurisdiction where legislation gives it jurisdiction. There are no provisions in the Ambulance Services Act giving VCAT jurisdiction to review decisions made under that Act. VCAT has a ‘small claims’ jurisdiction under the Australian Consumer Law and Fair Trading Act 2012 (Vic) however the issue of ambulance fees would probably not fall within the relevant definition, not least because it is a dispute ‘not arising under a contract’ (see Arts Law Centre of Australia, Debt Recovery – Small Claims Procedure (Victoria) 2010; see also Australian Consumer Law and Fair Trading Act 2012 (Vic) s 183 definition of ‘small claim’). If VCAT does not have jurisdiction, then the Magistrates Court does.

Where someone believes that they are owed money, it is up to them to prove their case. They can write invoices, send letters of demand etc but they cannot compel the other person to pay unless they get a judgment from a court or tribunal. Some jurisdictions (eg the ACT) allow an applicant to seek an order that they do not owe the money claimed (see ‘debt declaration’ at https://www.acat.act.gov.au/case-types/civil-disputes). In the absence of that jurisdiction the alleged debtor would have to deny liability and wait for the alleged creditor to sue, and then seek an order from the court that no debt is due. That is of course slow and expensive. What’s worse is that the creditor may put the debt in the hands of debt collectors who can make the alleged debtor’s life a misery without ever going to the effort of going to court.

Discussion

Today’s correspondent did ring triple zero and one can understand why an ambulance was dispatched. The patient was diverted to a GP line. When the GP answered they presumably could not communicate with the person. That may have meant they had got up to go to the toilet, had fallen asleep or had collapsed and were critically ill. If it was the last scenario and no action was taken that would, I think, be seen as a failing of the health system. (I pause to note that my correspondent rang at 4am, allowing for a 60-minute wait he was expected to speak to a doctor by 5am. Presumably the call was not connected but even then, it took three hours – until 8am – for an ambulance to arrive. If they were ‘collapsed and critically ill’ they would have been in a very bad way with a three-hour delay).

Although we may think it misguided to ring triple-zero people may not know there are other options (such as the Health Direct Hotline). This person rang triple zero asking for information, not an ambulance. Presumably when the ambulance crew arrived, and notwithstanding the Ombudsman’s recommendation, they did not advise the patient that allowing them to conduct an examination would cost in excess of $500.

Regardless of whether it was ‘right’ to call 000 or not, s 10(8) imposes an obligation to pay only a person who has been ‘transported by an emergency ambulance service’. There is no provision that says a person who has been treated, or examined, but not transported is liable to pay a fee. I cannot see any obligation to pay ambulance fees in Victoria where there is no transport and where the person has not consented to the service or to pay a fee. Section 16(a) may give the ambulance service the power to charge the fee but there is no equivalent to s 10(8) to impose an obligation on anyone to pay it.

The counter to that argument would be an ‘implied consent’. If I ring a plumber and say there is an urgent issue with the stormwater drain, the plumber would come around and probably fix the problem without a long discussion about fees and would be entitled to sue for his or her reasonable fees. it would be expected that everyone understood this was a fee for service agreement. If I asked about fees before the work began he or she would have to give disclosure on their fees. That fee is due and payable as part of contract law or the equitable right to sue on the quantum meruit (‘a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract’.). Where the person has themselves rung 000 and asked for an ambulance, AV would be able to make a similar argument. What is different in this case is that the person specifically said they did not want an ambulance. And AV, presumably, did not explain when the paramedics arrived that if they came in, it would cost.

My correspondent says they did not authorize ‘any ambulance service’ but they did when they allowed the paramedics to come in and and cooperated with their treatment. Despite advertising however many people would still not know that ambulance services, unlike public hospitals, are not free. This was why the Ombudsman thought it imperative that this is communicated to people.

In summary, my correspondent could argue that they specifically said they did not want an ambulance sent and they were not informed that there would be a cost if they allowed the paramedics to check them over; the Act anticipates AV charging for transport, not treatment without transport; and in the absence of an equivalent to s 10(8) there is no legal obligation to pay where there is examination but no transport.

AV, on the other hand, could argue that the Act that gives the secretary the power to set, and AV the power to charge a fee in turn implies an obligation to pay the fee. Further it is known, and the fact that the caller didn’t want an ambulance implies that they knew, ambulance services are not free. The caller did consent to ambulance services when they allowed paramedics to enter their home and cooperated with them in their examination. AV is therefore entitled to its fees on the basis of either the statute, an implied contract or the quantum meruit.

Remedies

The simple remedy is to pay the bill.

Failing that, given the Ombudsman report of 2019, the fact that s 10(8) has not been amended and, it would appear, AV are not, or did not, give ‘relevant information about potential costs, and … adequately inform’ this patient a further complaint to the ombudsman may be helpful.

An alleged debtor may want to refuse to pay and leave it to AV to sue them and then defend the claim though that is both expensive and time consuming and if the matter is referred to debt collector or credit reporting agencies can have serious implications. There is no jurisdiction in VCAT to seek a declaration that the debt is not owed unless and until the creditor seeks to recover the debt.

Important Disclaimer

I repeat the important warning from the start of this post. This is not the place for legal advice. My correspondent should seek advice from a lawyer practising in Victoria – eg a community legal service – to get specific advice on their particular circumstances as well as advice on how to respond to any claims from AV and local advice about the jurisdiction and practices of VCAT and the Victorian Magistrates Court. They should not rely on what has been written here to make any decision on how to respond to any claim for payment from Ambulance Victoria (AV).

Categories: Researchers

Private paramedics in Queensland

7 February, 2024 - 06:00

Today’s correspondent clams:

… a very rudimentary understanding of the legislative scope as pertaining to the Public Health Act (2005) versus the Mental Health Act (2016) versus the Guardianship and Administration Act (2000) versus Ambulance Service Act (1991).

To explore the interaction between those Acts they give the following ‘hypothetical scenario’:

… [In Queensland] a private registered paramedic working event medical in a remote area with an ambulance response >1h who has a patient that they would deem to not hold capacity under guardianship and appear as a risk to themselves, for example suspected drug induced psychosis or some other acute change in mental status, who is refusing treatment / investigation.

In the first instance, let’s say the patient is restrained by security officers, awaiting a QPS response, how does the guardianship legislation relate to this interaction?

In the second instance let’s say QPS have restrained the patient, and intend to place them under an EEA, and are requesting said private paramedic to administer chemical restraint while awaiting a QAS response.

I will place good faith on our said private paramedic and assume they take into consideration all of the safety and advocacy considerations involved in the discussion of physical vs chemical restraint being in the patient’s best interest. Does this second instance change the legislative considerations?

The final instance relates to the above scenarios however this time the private paramedic calls the appropriately qualified medical officer under whom they practice for a consultation, does this final instance once again change the legislative considerations?

I hold a vague understanding of the legislative consideration for authorised ambulance officers, but this discussion of private practice is well outside of that understanding.

The Ambulance Service Act 1991 (Qld)

The Ambulance Service Act isn’t relevant. With the exception of s 43, ‘Unauthorised ambulance transport’, it is an Act about the Queensland Ambulance Service, not about ambulance services in Queensland.

Mental Health Act 2016 (Qld)

Given that Emergency Examination Orders are made under the Public Health Act 2005 (Qld), I cannot see that the Mental Health Act 2016 (Qld) is relevant (see Involuntary detention by police or ambulance officers under the Public Health Act (Qld) (March 16, 2021)).

Guardianship and Administration Act 2000 (Qld)

The starting point is the Guardianship and Administration Act 2000 (Qld) s 63 which says:

(1) Health care … of an adult may be carried out without consent if the adult’s health provider reasonably considers—

(a) the adult has impaired capacity for the health matter concerned; and

(b) either—

(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or

(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998 .

(2) …

(3) However, the health care mentioned in subsection (1) (b) (ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—

(a) the adult has minimal or no understanding of 1 or both of the following—

(i) what the health care involves;

(ii) why the health care is required; and

(b) the health care is likely to cause the adult—

(i) no distress; or

(ii) temporary distress that is outweighed by the benefit to the adult of the health care.

In the scenario we’re told that the patient does not have capacity so the criterion in s 63(1)(a) is met and I will assume the criterion in s 63(1)(b)(i) is also met. We are also told that the patient is ‘is refusing treatment / investigation’ in which case treatment cannot be given unless the criteria in s 63(3) are also met. I will assume that is also the case.

A health provider is ‘a person who provides health care … in the practice of a profession or the ordinary course of business’. Today I think it is unarguable that a paramedic provides health care in the course of the practice of their profession.

Let us now look at the scenario:

In the first instance, let’s say the patient is restrained by security officers, awaiting a QPS response, how does the guardianship legislation relate to this interaction?

The cited legislation is irrelevant here. The Security guard is not a ‘health provider’. The security guard’s actions are justified by the common law doctrine of necessity – where the patient is unable to give or refuse consent care that is reasonably necessary and in the patient’s best interests (see The doctrine of necessity – Explained (January 31, 2017)). This may include restraint – think if a child wandering alone, no-one would question that anyone could in effect restrain the child in their best interests. The same where a person is clearly unwell and in danger. Whether it is safe to restrain them, whether the guard uses only reasonable force, and whether the person was in fact competent to refuse care (in which case the guard’s actions are a false imprisonment) might all be issues to be resolved. But as a matter of principle the guard can restrain the person if the person is not competent, and the actions are reasonable and intended in the person’s best interests.

Once the paramedic is on scene, he or she should take control of the situation. They may continue to ask the security guard to assist but it must be up to the paramedic to assess what is in the patient’s best interest and be alert to any risk posed to the patient by the security guard’s use of force (see for an international example, Lessons for Australia following conviction of US paramedics? (December 31, 2023)).

Public Health Act 2005 (Qld)

An EEA – an Emergency Examination Authority – is issued under the Public Health Act 2005 (Qld) ss 157B to 157F. An ‘ambulance officer or police officer may detain [a] person and transport the person to a treatment or care place’ (s 157B(3)) if the criteria set out in s 157B(1) are met; that is;

(a) [The] person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and

(b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and

Let us assume those criteria are met, so the police officer can detain the person. The police request, asking the ‘private paramedic to administer chemical restraint while awaiting a QAS response’ is irrelevant. The police can ask the paramedic to assess and treat the person. The power of the paramedic to do so is found in the Guardianship and Administration Act and the common law, discussed above. It is up to the paramedic to decide what treatment is reasonably indicated by the patient’s condition and circumstances and what is in the patient’s best interests. The police cannot tell the paramedic what treatment to administer (see, again, Lessons for Australia following conviction of US paramedics? (December 31, 2023)).

Does this second instance change the legislative considerations? No, the paramedics still need to apply the Guardianship and Administration Act and the common law.

It doesn’t change the legislative considerations as the medical practitioner is authorised to act under the same provisions. The consultation with the medical practitioner may be useful evidence to support the paramedics conclusion that the patient was not competent or that the treatment administered was reasonable in all the circumstances. If the medical practitioner is willing to issue an oral prescription for the sedative (Medicines and Poisons (Medicines) Regulation 2021 (Qld) r 92) then the paramedic could administer that drug as they can assist anyone to receive a prescribed drug. The medical practitioner has not seen the patient and cannot assess their circumstances so should be very cautious in providing that prescription particularly given the paramedics can issue the same drug on their own initiative (and if they can’t, why are they carrying it). There is a difference between a consultation and agreeing that ‘yes, that sounds reasonable’ and a doctor being prepared to ‘prescribe’ the drug. A paramedic is however a health professional so even in the circumstances where the doctor ‘authorises’ the administration the paramedic would need to still consider the patient’s circumstances and whether the criteria in the Guardianship and Administration Act apply. If they do not, then they cannot administer the drug, even if it has been prescribed.

Categories: Researchers

Online emergency training and AS3745

6 February, 2024 - 06:00

Today’s correspondent has a question that they

… have struggled to find absolute clarity on since I have returned to the world of AS3745:2010 training post COVID. I would like to know if Emergency Warden training hosted purely by an LMS [Learning Management System] (i.e. a SCORM [Sharable Content Object Reference Model] file or set of videos) satisfies Section 6.1 requirements (see below snip).

I fully understand that this doesn’t apply to whole staff ‘awareness training’, but I really can’t imagine that a generic LMS solution would satisfy the above highlighted.

Can you please confirm that annual online Chief Warden, ECO [Emergency control organization], Emergency Warden etc LMS online training (with no live support or content) is or isn’t enough to satisfy the minimum standard requirements (acknowledging that this standard isn’t legislated in most states) but in some states like NSW required to satisfy the WHS Act.

The search for ‘absolute clarity’ is misguided. The law is often not absolutely clear and intentionally so. The objective to be met may be set out but the way to get there is not as that allows different sectors, and different players to find different ways to achieve the required objective. Remote learning technology has come a long way and will go much further so no-one wants to say, with ‘absolute clarity’ that it cannot be used.

I cannot therefore confirm whether ‘annual online Chief Warden, ECO, Emergency Warden etc LMS online training (with no live support or content) is or isn’t enough to satisfy the minimum standard requirements’ but I can make some observations.

To start with [6.1] and the requirement that all training ‘shall be conducted or supervised by competent persons’. Competent persons means [1.4.5]:

A person who has acquired through training, education, qualification, experience, or a combination of these, the knowledge and skill enabling him/her to correctly perform the required task.

A competent person may well be presenting the online training, and it may have been designed by competent persons to deliver relevant key messages. If a person really is doing the training on their own on a computer there would certainly be a question of whether the training is ‘supervised’ but the need for supervision is an ‘or’ ie ‘All training and skills retention activities shall be conducted or supervised by competent person(s)’. If for example a trainee is doing the training, then supervision by a competent person is required. But if a competent person has approved the content and is delivering the online content then training is being ‘conducted’ by a competent person.

Training for the Emergency planning committee (EPC) and for members of the ECO needs to be site specific including training on installed systems (see 6.2] and [6.3.1.2]). There is an obligation to provide site specific training materials, and these may be in electronic form ([6.7]).

Training for members of the ECO ‘shall include exercises and assessment’ [6.3.1.2] but even these could be done via a well-developed online learning program.

The emergency response arrangements have to be tested. Paragraph 7.1 says:

A program of site-specific emergency response exercises shall be developed in collaboration with the facility owners, managers, occupiers and employers each facility to determine the effectiveness of the emergency response procedures, ECO actions and occupants’ response, both when first developed and on an ongoing basis.

Discussion

There is no clear rule that says ‘training hosted purely by an LMS (i.e. a SCORM file or set of videos) satisfies [or does not satisfy’ the requirements of AS3745. Whether it does or does not would depend on the nature of the site-specific risks and procedures and the quality of the training tools. I have no idea what can be achieved with virtual reality headsets and AI!

I can see the issue that training is to be ‘supervised’ and for members of an ECO is to involve exercises and assessment. One can certainly wonder whether a warden, communications officer or first attack firefighter can really be trained via an online delivery but it’s not for me to say one way or the other. If I were to say ‘no they cannot’ it may reflect more on my poor understanding of what’s possible than the law.

Section 6 of the Standards prescribes the required outcome of the training, not the route by which that training is delivered. Different people with different learning styles may learn much more in the online environment than in a face to face session; and vice versa. It really is up to those delivering the training to determine if they are delivering training that covers the prescribed content and whether it is effective for learners. Plenty of training, however it is delivered, can be a simple ‘tick box’ exercise to say it’s been done even if it is ineffective.

The critical issue is whether the content is delivered and whether the learners are then competent to perform their tasks. That is, or should be, determined in the required emergency response exercises.

Emergency Warden training hosted purely by an LMS’ satisfies the requirements of the standard if it delivers the content prescribed by the standard ([6.3.2]) and if, at the end of the training, the person is competent to perform the tasks assigned.

Categories: Researchers

Audiometric testing for NSW SES

5 February, 2024 - 06:00

Today’s correspondent tells me that:

The NSW SES has announced that from January 2024 all new volunteer members will be required to undertake a hearing assessment within three months of starting with the agency.

This is due to new legislation which has recently come into effect – WHS Regulation 2017 Part 4.1 Noise Clause 58 – Audiometric Testing which states:

This clause applies in relation to a worker who is frequently required by the person conducting the business or undertaking to use personal protective equipment to protect the worker from the risk of hearing loss associated with noise that exceeds the exposure standard for noise.

The Act doesn’t define “frequently”, but as an SES volunteer myself I don’t consider that I frequently use hearing protection – maybe once every couple of months when using a chainsaw or being under a Helicopter.

Is there a standard legal definition of “frequently”?

Regulation 58(1) has been quoted above. Regulation 58(2) says:

The person conducting the business or undertaking who provides the personal protective equipment as a control measure must provide audiometric testing for the worker–

(a) within 3 months of the worker commencing the work, and

(b) in any event, at least every 2 years.

The obligation to give audiometry testing to those frequently required to wear noise protection PPE does not mean that the PCBU cannot give, or require that testing for everyone.

Frequently

There is no standard legal definition of ‘frequently’ in any law dictionary I can access. A google search provides the following definition from Oxford Languages – ‘regularly or habitually; often’. There are no cases interpreting the word ‘frequently’ as it is used in the WHS regulation.

The risk of hearing loss

The theory behind modern work health and safety legislation is that it is up to the person conducting the business or undertaking (the PCBU) in consultation with the workers to identify risk and to put in place measures to manage that risk. Every work place is different so it is left to each workplace to manage risk rather than set out prescribed rules that have to be complied with in every workplace, but which may be irrelevant to some. This leaves lots of room for discretion and for different judgements as to what is a reasonable response to risk. That is problematic for PCBUs that have attempted to manage risk but where a WorkSafe inspector thinks they have not done all that they reasonably could, or should have done. The only way to find out if a PCBU has met its obligations is to put the matter before a court but that is costly and ineffective and shutting the door after the proverbial horse has bolted.

To avoid that the Minister can publish relevant Codes of Practice (Work Health and Safety Act 2011 (NSW) s 274). A Code of Practice is not binding but if a PCBU can show that it has followed the Code of Practice then that is evidence that it has met its obligations under the Act (s 275). There is a Code of Practice for Managing noise and preventing hearing loss at work (December 2022). The Code does not define the term ‘frequently’. The Code does talk about exposure to noise. There is a prescribed noise threshold of 85 decibels averaged over 8 hours or a peak noise of 140 decibels. The Code of Practice says:

Whether the exposure standard (85 dB(A) averaged over eight hours) is exceeded depends on the level of noise involved and how long workers are exposed to it.

Peak noise levels greater than 140 dB(C) usually occur with impact or explosive noise such as sledge-hammering or a gun shot. Any exposure above this peak can cause almost instant damage to hearing.

Decibels (dB) are not like normal numbers. They can’t be added or subtracted in the normal way. The decibel scale is logarithmic. On this scale, an increase of 3 dB represents a doubling of sound energy. This means that every 3 dB increase in noise level can cause the same damage in half the time. Table 1 provides examples of the length of time a person without hearing protection can be exposed before the standard (LAeq,8h = 85 dB(A)) is exceeded…

Davis, in ‘Noise and Vibration Hazards in Chainsaw Operations: A Review’ (1978) 41(3) Australian Forestry 153-159, says:

The average noise level for many chainsaws is about 106 dB; this is medically unacceptable when exposure occurs over the average cycle times for stump operations. However, ear-muffs will reduce the perceived noise level to below 80 dB, thereby eliminating the dangers of deafness.

(see also WA Department of Energy, Mines, Industry Regulation and Safety, Noise Management: Chainsaws (May 16, 2014)).

Similar noise levels for rescuers outside of helicopters have been reported (Thomas Küpper, Paul Jansing, Volker Schöffl, Simone van Der Giet, ‘Does Modern Helicopter Construction Reduce Noise Exposure in Helicopter Rescue Operations?’ (2013) 57(1) The Annals of Occupational Hygiene 34–42, https://doi.org/10.1093/annhyg/mes048).

According to Table 1 of the NSW Code of Practice, a person can be exposed to 106 dB(A) for 3.8 minutes before they have been exposed to the prescribed noise threshold.

Presumably someone who uses a chainsaw or is sometimes under a helicopter is exposed to that noise for more than 3.8 minutes on each occasion. If they spend even an hour chopping up a fallen tree they are being exposed to noise and required to wear PPE ‘frequently’ even if they don’t do it again for 2 months.

Discussion

Risk assessment is about measuring the likelihood of an event against the undesired outcomes. No-one wants an SES volunteer to lose their hearing. If the SES decided that a person was not frequently required to wear PPE to protect them from noise, they may not require audiometry testing. What is the consequence? The member may suffer hearing loss that goes undiagnosed so ends up worse than it need be. Without a ‘base line’ they cannot show that if they have hearing loss it is attributable to your SES service. The SES may be prosecuted if the SafeWork inspector does not agree with the assessment. The SES (and the member) can mitigate that risk by audiometric testing.

And think of it from the SES point of view. If they are going to ask each individual member ‘do you think you are frequently required to use personal protective equipment to protect you from the risk of hearing loss associated with noise?’ they will get as many answers as people they ask. And the frequency may change. A person may think they are rarely exposed to noise for their town to be struck by a storm and they spend the next two weeks in a high tempo operational environment. It makes much more sense for an organisation like the SES to make the assessment based on role and training rather than each individual’s expectation. To say, in effect:

You have completed the chain saw course and therefore we expect you to use a chainsaw. Every time you use a chainsaw you are required to using hearing protection PPE. We don’t know how often you’ll be called upon to use a chainsaw but given it is now part of your role you will be ‘frequently’ – regularly or habitually – (and more frequently than someone who is not an SES chainsaw operator) to use noise protection PPE and therefore we are obliged to provide audiometry testing.

Chainsaw operators get frequently exposed to chainsaw noise; flood boat operators are frequently exposed to the noise of outboard motors; office administrators generally work in a quiet environment etc.

And beyond doubt the safest option for everyone is to test everyone.

Conclusion

I don’t know if my correspondent is being offered audio assessment and doesn’t want it; is not being offered it but they want it; or if they are indifferent and just want to know what the word ‘frequently’ means. The question I was asked was ‘Is there a standard legal definition of “frequently”?’ The answer to that question is ‘no’.

I have gone beyond answering the question asked to say how I think a prudent SES would or should make the assessment of ‘frequently’ for the purposes of the Act. I have done that without reference to legal authority (ie case law) but from my reading of the Act and my understanding of the WHS legislation. It is however up to the SES, in consultation with workers (including volunteers) to decide how it will manage the risk.

Categories: Researchers

Beards and NSW Ambulance

4 February, 2024 - 13:56

Today’s correspondence takes us back to the question of beards and face masks – see Facemasks, beards and COVID-19 (March 26, 2020). That post was about Queensland ambulance whereas today’s is about NSW Ambulance. My correspondent says:

A solution, for masks with beards, has been approved by the Clinical Excellence Commission and is now outlined in their manual. In addition, NSW Ambulance has a procedure for covering beards within their operating procedures. As a result, any NSW Ambulance argument that shaving is “related to the job requirements” is certainly questionable.

Below are extracts from both documents.

Operating Procedure PRO2023-10 ORDER OF DRESS UNIFORM (INTERIM) states the following;

Shaving

Staff must be clean shaven at the commencement of every shift.
Facial hair interferes with the integrity of an adequate seal to complete a Respiratory Fit Check (RFT) on a respiratory face mask. (Reference: Clinical Excellence Commission; Respiratory Protection Program, March 2021)
Staff with exemption from removing facial hair due to a medical condition or religious observance can use an approved beard covering technique, as outlined at PRO2022-002 Beard Covering Technique Operating Procedure. (Reference: Clinical Excellence Commission; Respiratory Protection Program Manual, December 2021)

Clinical Excellence Commission; Respiratory Protection Program Manual states:

Health Workers who are unable to remove facial hair to wear a tight-fitting respirator due to medical reasons, psychological needs/reasons, cultural or religious observance should follow directions in Appendix 4A: Use of respiratory protective device with beard cover technique.

Do the requirements for NSW Ambulance employees to shave their faces cross any Fair Work boundaries? Does the act of allowing some individuals an exception to removing facial hair but not others constitute discrimination?

An employee is required to comply with the lawful and reasonable directions of an employer. Under the Work Health and Safety Act 2011 (NSW) a worker is required to take reasonable care of their own safety, comply with reasonable instructions given so that the Person Conducting the Business or Undertaking (the PCBU) can meet their obligations under the Act and to follow any reasonable WHS policy (s 28). They are also required to wear provided PPE and to use it as instructed (Work Health and Safety Regulation 2017 (NSW) r 46).

To discriminate is to make choices; to ‘recognize a distinction; differentiate’. Distinguishing between people is only unlawful is the choice or distinction is made on one of the prohibited grounds – race (which includes ‘colour, nationality, descent and ethnic, ethno-religious or national origin’), sex, transgender grounds, marital or domestic status, disability, carer responsibilities, homosexuality and age (Anti-Discrimination Act 1977 (NSW)).

Discrimination on the grounds of ‘ethno-religious origin’ is not the same as discrimination on the grounds of religion (see Margaret Thornton and Trish Luker, ‘The Spectral Ground: Religious Belief Discrimination’ (2009) 9 Macquarie Law Journal 71-91). Thornton and Luker says

While the term ‘ethnic origin’ is included as one of the cognate terms under ‘race’ in all legislation, ‘ethno-religious origin’ is specifically identified only in NSW and Tasmania and has been a contested and ‘ad hoc category’. Sikhs and Jews have been found to constitute ethno-religious groups, but the situation in relation to Muslims is less clear…

The inclusion of ‘ethnoreligious origin’ as a term recognised the function of religion as a signifier of race. Religion articulated as belief or theology may be incomprehensible to law but when it is understood as a characteristic of race or ethnicity, this facilitates identification because it is marked in difference…

I’m not going to get into comparative religious studies, and recognising that my source (Claudio Sorrentino ‘Hair, symbolism, Religion and Laser Hair Removal – What does it all mean’ Body Details True Laser Centres Blog, 20 October 2023) is not authoritative, I will accept, for the sake of the argument, that the following is true:

Other religions mandate the presence of hair and consider it disrespectful to God or their higher power to remove or alter it. These religions include Orthodox Judaism, Rastafarianism and Sikhism. These religions prohibit haircuts and the removal of facial hair as they believe hair to be a gift from God.

Other branches of Judaism state that men must not only grow beards but are forbidden to remove any portion of their sideburns at any time. Islam encourages men to keep facial hair, such as beards. In Christianity, the Bible states that men should not cut bald patches on their edges or trim the edges of their beard. Traditional Christians believe that hair is a covering given by God.

Discrimination may be direct or indirect. Direct discrimination occurs when a rule or policy expressly discriminates on unlawful grounds – eg a policy that only men can be employed as paramedics would be an example of direct discrimination. Indirect discrimination occurs where a policy appears to be universal but has different applications given people’s protected attributes (see Disability Discrimination Act 1992 (Cth) ss 5 and 6).

An employer has to make reasonable accommodation to allow people with protected attributes, in particular a disability, to fully participate in the workplace. That is if a person has a disability (ie a medical or psychological reason that limits their ability to shave) or to require a person of a particular ethno-religious origin to shave thereby denying them a characteristic of their race or ethnicity, making reasonable accommodation for them is not unlawful discrimination, whereas imposing what appears to be a universal rule (‘everyone must be clean shaven’) may be an example of indirect discrimination.

Do the requirements for NSW Ambulance employees to shave their faces cross any Fair Work boundaries?

I am not sufficiently across the Fair Work case law, but I cannot see anything in the Fair Work Act (which doesn’t apply to NSW Ambulance employees in any event – see Fair Work Act 2009 (Cth) s 14(2)) or the minimum employment standards.

Whether it is a lawful direction all comes down to whether it is ‘reasonable’. That would require a consideration of risks/costs versus benefits. The Clinical Excellence Commission’s Respiratory Protection Program Manual (v 2, November 2023) certainly favours the removal of facial hair but, as my correspondent has noted, does provide for two techniques that can be used to cover facial hair and still get an effective seal on face masks and advocates the use of those techniques for health workers ‘with an exemption to keep facial hair due to medical condition, psychological needs/reasons or genuinely held cultural or religious observance’ (p. 28 and Appendix 4A).

Whether a requirement by NSW Ambulance that staff are clean shaven is ‘reasonable’ would require consideration of the reasons for the policy – that in turn would require consideration of the risk assessment that has been undertaken. The risk assessment is, hopefully, guided by the Clinical Excellence Commission that says (Appendix 4A)

The proper fitting of a tight-fitting respirator always requires the sealing surface of the respirator to be free of facial hair. HWs with any amount of facial hair, even a few days of growth particularly where the mask seals on the face, may NOT be able to achieve a seal with a tight-fitting respirator. HWs required to wear a tight-fitting respirator or attending fit testing must not have any facial hair present. The primary recommendation for achieving a seal, with a tight fitting RPD, requires a clean-shaven face.

The beard covering technique is a secondary option so not as a good as being clean shaven.

Is it unlawful discrimination? Probably not. Making adjustment for those with a disability (a medical or psychological reason not to shave) is required by law (Disability Discrimination Act 1992 (Cth)). That position is not so clear when it comes to race discrimination, but I think it is evident from the various claims cited in Thornton and Luker, above, it is expected that steps are taken to accommodate ethno-religious requirements where that is reasonable.

The way to test it would be to make a complaint to Anti-Discrimination NSW or refuse to comply with the policy, get subjected to disciplinary proceedings, and then make a relevant application to the NSW Industrial Relations Tribunal.

Categories: Researchers

The WHS Act and the NSW Rural Fire Service

3 February, 2024 - 06:00

Today’s correspondent asks:

Considering the changes to the Work Health & Safety Act 2011 in late 2023 should the NSW RFS consider a broad review of all RFS Service Standards and Operational Policy?

The introduction of sections 244A – 244D in the WHS Act which allow for aggregation of conduct for body corporate PCBUs is of particular interest to me and how it may apply to the conduct of the NSW RFS senior executive team. For instance:

It is widely known that members of the NSW RFS attend incidents in some areas of the state with little or no PPE/PPC.
It is also widely known that members of the NSW RFS attend incidents with little to no training e.g., Bush Firefighter (BF) or Crew Leader Supervision/ Wildfire (CLS/CLW).
The Prescribed Burning Operational Protocols (June 2023) reads…

“For all prescribed burns undertaken using the Level One Simple (and Two Complex) Prescribed Burn Plan, the BIC should be accredited in this competency Conduct Complex Prescribed Burn or is authorised in writing by the FCO to conduct the burn in accordance with this protocol”.

4. Service Standard 2.1.4 Appointment of Field and Group-Officers has a clause that reads…

“The District Manager may, after consultation with the SLT in the district, set other reasonable additional criteria to be satisfied by those nominating for Field Officer positions in that district”.

For examples 1 and 2, if a ]member is seriously injured or killed whilst in attendance at an RFS incident it could be contended that the sections ‘244B State of mind’ and ‘244D Failure to take reasonable precautions’ is applicable as the body corporate’s board of directors could be considered to be complicit as they have knowingly or recklessly allowed the above to occur without implementing corrective actions to limit or prevent the occurrence of members with insufficient training and/or PPE/C from attending an incident.

For examples 3 and 4, if a captain is authorised by the District Manager (FCO) to undertake a HR burn with the captain holding neither the minimum qualifications stipulated to hold their rank nor the required qualifications to supervise a HR burn. This hypothetical burn escapes leading to property loss and serious injury to several individuals (both the RFS and public). It could also be contended that both sections ‘244B State of mind’ and ‘244D Failure to take reasonable precautions’ are applicable with the body corporate’s board of directors knowingly and intentionally allowing for the watering down of prerequisite qualifications in order to achieve a desired goal or object at the expense of having a suitably qualified person in control of an incident or HR burn.

What offences (and penalties) could the body corporate’s board of directors and RFS be considered to have breached face it if the above two examples where the NSW RFS to be found as being negligent in court?

Legal personhood

Only a legal person can sue and be sued or own property or otherwise have standing in the courts. A legal person is a natural person (you or I), a corporate entity or the Crown ie the body politic that makes up the states and the Commonwealth (see for example, Hartford Davis, S. H. (2019). The Legal Personality of the Commonwealth of Australia. Federal Law Review, 47(1), 3-30. https://doi.org/10.1177/0067205X18816236).

When we think of corporations, we tend to think of commercial trading companies registered under the Corporations Act 2001 (Cth). There are also smaller, non commercial corporations such as the local football club or other association formed under the Associations Incorporation legislation in each state and territory. A corporate entity is separate from its shareholders or members. It can sue and be sued in its own right. It can be guilty of a crime. Criminal law usually requires a relevant state of mind, eg to be guilty of involuntary manslaughter the defendant has to intend to kill but in circumstances of gross negligence or an unlawful and dangerous act. How would one attribute that state of mind to a corporation that is governed by directors? The point of ss 244A to 244D of the Work Health and Safety Act 2011 (NSW) is to explain when a corporate entity will be deemed to have the state of mind necessary to be guilty of a crime.

Section 244B says that if the board of directors, or an authorised person

(i) intentionally, knowingly or recklessly engaged in the relevant conduct, or

(ii) expressly, tacitly or impliedly authorised or permitted the carrying out of the conduct

Then the legal entity that is the corporation is deemed to have had the relevant state of mind of intention, knowledge or recklessness and the corporation can be guilty of any relevant offence. For example to prove a category 1 offence under s 31 of the WHS Act, the Crown has to prove that the defendant

(i) engage[d] in the conduct with gross negligence, or

(ii) [was] reckless as to the risk to an individual of death or serious injury or illness.

If the defendant was a corporation, the Crown would seek to prove that the board of directors or an authorised person was grossly negligent or reckless and then the Corporation could be prosecuted.

The RFS is not a legal person

The problem is that the RFS is not a corporation. It is not a legal entity that can be sue or be sued. It is not governed by a board of directors. The RFS is created by the Rural Fires Act 1997 (NSW). It is made up of the Commissioner and other staff and the volunteer fire fighters (s 8(2)). The Commissioner, and not a board of directors, ‘is responsible for managing and controlling the activities of the Service and has such other functions as are conferred or imposed on the Commissioner by or under this or any other Act.’ The Commissioner is a senior public servant. The Office of the NSW Rural Fire Service is an executive agency of the Crown in Right of NSW headed by the Commissioner within the Department of Communities and Justice. The Commissioner’s effective employer is the Minister administering the Rural Fires Act 1997 (Government Sector Employment Act 2013 (NSW) Schedule 1). The Rural Fire Service does not have a separate entity, assets own by the RFS are owned by the Crown. The appropriate defendant if anyone wants to sue the RFS is the ‘State of NSW’ (Crown Proceedings Act 1988 (NSW) s 5).

The WHS Act applies to the Crown

What follows is that ‘sections 244A – 244D in the WHS Act’ have no direct application to the RFS. The RFS is not a corporation.

What is applicable to the RFS is sections 245 to 248 dealing with the liability of the Crown under the Work Health and Safety Act. Relevantly s 245(2) and (3) say:

(2) For the purposes of this Act, any conduct engaged in on behalf of the Crown by an employee, agent or officer of the Crown acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the Crown.

(3) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against the Crown for that offence to prove that the person referred to in subsection (2) had the relevant knowledge, intention or recklessness.

What that means is that if the Commissioner, or a District Manager or if it could be argued that a volunteer was an ‘agent’ of the Crown, a volunteer, acting within the actual or apparent scope of his or her authority engages in conduct that breaches the WHS Act then it is the Crown that can be prosecuted. And the Crown is prosecuted. In the context of the emergency services the stand out cases are the prosecution of NSW Fire Brigades (as it then was) over the death of three civilians at a silo fire and the recent prosecution of NSW Ambulance over its management of drugs and paramedics at risk of abusing drugs (see Inspector Mayo-Ramsay (Workcover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356 and SafeWork NSW v Crown in the Right of New South Wales in respect of the Ambulance Service of NSW [2023] NSWDC 134). In both cases the defendant was the Crown.

For all the examples given, if the relevant state of mind can be shown then the Crown in Right of NSW could be prosecuted for breaching the WHS Act. However, it has to be remembered that just because members attend incidents with little to no training (eg perhaps they are there as part of their training and are being supervising and monitored) or an FCO authorised a person in writing to undertake a burn, even if not formally accredited but recognising their prior knowledge doesn’t mean there has been a breach of the Act. There are obligations upon a PCBU to ensure workers are trained and have necessary PPE but without more it’s not possible to say anything described would, or would not be a breach. What we can say is that if there is a breach, the appropriate defendant would be the State of NSW. That’s always been the case.

Conclusion

Sections 244 to 244D were added to the Act in 2023. Section 245 has been in the Act since it was first passed in 2011. There is nothing new here.

The RFS is not a corporation. It is part of the government – the State of NSW. The presence of the new sections 244-244D have no implication for the RFS. For the RFS the law has not changed, where there is a breach of the WHS by ‘an employee, agent or officer’ of the RFS then the RFS may be prosecuted for that breach.

Categories: Researchers

Pay recognition at the intersection of paramedicine and nursing

2 February, 2024 - 06:00

Today’s correspondent, a dual registered paramedic and nurse, has been in touch regarding his dispute with NSW health to have his practice as a paramedic recognised as relevant service as a nurse when it came to determining pay and seniority. What follows is his report on the dispute and the outcome. He writes:

In June 2020, I escalated a pay grade dispute, emphasizing the disparity between my allocated pay grade and my extensive experience as both a paramedic and a registered nurse. I argued that although I was employed as a paramedic I was practicing as a registered nurse as defined by the Public Health System Nurses’ and Midwives’ (State) Award 2023. I submitted that my paramedic service should be recognised by the nursing profession as relevant practice and service for the purpose of determining appropriate seniority and salary grade. I argued that the diverse paramedic roles align with the NSW Award Registered Nurse hours of practice and responsibilities, warranting equitable recognition.

The NSW Award’s says ‘”Registered Nurse” means ‘a person registered by the Board as a Registered Nurse and/or Registered Midwife.’ Service, for the purposes of determining an employee’s salary rate ‘means service before or after the commencement of this award in New South Wales or elsewhere as a registered nurse …’ [The employment level is determined by years of service. Table 1 to the award sets out the salary rates for Registered Nurse/Midwife 1st Year, 2nd Year, 3rd Year etc until ‘8th Year and Thereafter’. What is ‘service as a registered nurse is not defined]. The Australian Health Practitioner Regulation Agency (AHPRA) defines practice as a registered health professional as:

… any role, whether remunerated or not, in which the individual uses their skills and knowledge as a health practitioner in their profession. Practice in this context is not restricted to the provision of direct clinical care. It also includes using professional knowledge (working) in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on the safe, effective delivery of services in the profession.

AHPRA’s definition of practice encompasses various roles beyond direct clinical care, reflecting the evolving landscape of healthcare professions.

I argued that if an individual practices as a registered nurse or midwife, the hours spent in roles traditionally labelled as paramedic should contribute to their nursing service and vice versa. This aligns with AHPRA’s definition of practice and supports the cross over and experience of these professions.

To support my case that practice as a paramedic also meets the definition of practice as a nurse, I provided evidence of diverse clinical roles, including positions that cross over as a paramedic and registered nurse including retrieval roles, GP super centre roles, Remote Area Roles with nurses in Ambulance, Extended Care Paramedics performing traditionally Nursing based skills, Remote Community Paramedics as well as university subjects that are shared.

I noted that the Hon Mark Butler, Minister for Health in Victoria had discussed the use of paramedics in urgent care and extended care setting in a media statement in January 2023. The Australasian College of Paramedicine’s CEO John Brunning also pushed for similar use of paramedics (13/04/22 & 29/03/23). Many ambulance services including NSW Ambulance and St John Ambulance (WA) have had employment pathways for registered nurses to become registered paramedics.

After many months of meeting and advocacy, supported by my local MP, senior health directors and a former senior MP, NSW Health accepted that my service as a paramedic, prior to commencing employment in NSW Health as a nurse was to be recognised for incremental salary progression. Adjustments to previous assignments and relevant back-pay was also granted.

Throughout the correspondence, the underlying theme was the importance of advocating for an inclusive and dynamic modern interpretation of awards. This necessitates recognizing the evolving roles within healthcare professions and ensuring that professionals with diverse backgrounds, additional qualifications, and additional relevant health registrations receive equitable recognition and remuneration.

My case reflects part of the journey towards achieving fair recognition and compensation for years of dedicated service between health professions where there is a direct cross over in expertise, knowledge, and skills. The positive resolution by NSW Health signifies a step towards a more inclusive and equitable approach in determining pay grades for healthcare professionals with diverse backgrounds.

Discussion

I have seen the letter from NSW Health which says (emphasis added):

… I have determined that your service prior to commencing employment in NSW Health is recognised for the purposes of incremental salary progression as a Registered Nurse.

This determination will have the effect of your previous assignments across the NSW Health Service … up to your current assignment as a Registered Nurse … being adjusted accordingly. Any underpayment of salary entitlements resulting from these adjustments should be paid to you forthwith.

To avoid doubt, please note that this determination is personal to you and is made on a without prejudice basis. It should not be used or seen to be a precedent for other employees in the NSW Health Service.

A settlement on a ‘without prejudice’ basis is used where parties wish to settle a dispute but not to have the settlement used against their future interests. People in disputes want to settle them for many reasons – including to avoid the cost, inconvenience and publicity that an ongoing dispute may involve.

Clearly my correspondent was in ‘dispute’ with NSW Health, and we cannot know what the thinking within NSW Health was when they agreed to meet his request for recognition of prior service. The letter makes it clear that NSW Health is not accepting, as a general principle, that service as a paramedic can and should count for the purpose of determining salary increments for nurses. In light of that letter we cannot say that ‘The positive resolution by NSW Health signifies a step towards a more inclusive and equitable approach in determining pay grades for healthcare professionals with diverse backgrounds.’ Notwithstanding these limitations, the outcome of this case will be of interest to dual registered practitioners and may point to a future where the overlap between health care roles is better recognised.

Categories: Researchers

Gaol time for assault on South Australian paramedic and police officer

1 February, 2024 - 06:00

Hubbard v Police [2023] SASC 182 (22 December 2023) was an ‘ambitious’ appeal by Mr Hubbard alleging his sentence of 10 months gaol, suspended after six months followed by a two year good behaviour bond was ‘manifestly excessive’. He had been convicted of numerous offences including two counts of assaulting a prescribed emergency worker (one police officer, one paramedic), ill-treatment of an animal, damaging a motor vehicle, carrying an offensive weapon (a hammer) and two counts of breach of bail ([2]).

The offending

On 23 February 2022 the appellant, Mr Hubbard, had an argument with his partner. He smashed the rear window of her car with a hammer and was later detained with the hammer. This was the basis of the charges of damaging the vehicle and carrying an offensive weapon.

The breach of bail allegations related to failure to comply with the bail conditions on two separate occasions between February and March 2022. He failed to report to police when he was required to do so, and he attended premises that he had been directed to avoid.

On 6 February 2023, in another argument with his partner, he took her rabbit from a cage and holding its hind legs he hit her with it, using such force as to kill the rabbit.

With respect to the assaults on the emergency workers (at [8]):

On 26 February 2022, the appellant assaulted a prescribed emergency worker. On that day, two paramedics were tasked to assist the appellant following a report that he may have injured himself. After arguing with the first paramedic who was trying to assist him, the appellant left the scene before returning and pushing the other paramedic, the victim, with enough force to knock him back into the ambulance. While being restrained, the appellant punched the victim to the jaw and chin area.

The other assault occurred on 6 February 2023 when police attended the dispute that ultimately involved the death of the rabbit. The incident is described at [10]:

The police attended and the appellant was arrested. After being observed headbutting the wall, the appellant was placed in a padded cell before being conveyed to the Lyell McEwin Hospital for an assessment. While there, the appellant threatened police and acted aggressively. While being restrained, he kicked a police officer to the right side of his face with such force as to cause blurry vision and significant pain.

The impact on the victims was set out at [11]-[12]:

Each victim of the assaults provided a victim impact statement. The paramedic described suffering headaches, back and hip pain, and being unable to eat properly for a number of days after the assault. He is a paramedic with 20 years’ experience who has been left worried about his ‘ability to safely continue in the profession [he] loves’. In his statement, he describes the ‘worrying impact’ the assault had upon he and his wife who is also a paramedic and was on duty that night. The attack was unprovoked, violent and targeted, occurring while the victim was speaking into his radio. It has caused the victim ongoing anxiety in the workplace and to question his ability to work alone if necessary due to the failure of risk mitigation strategies and de-escalation tactics that are relied upon.

The second assault had a significant effect upon that victim. The kick left him with blurry vision and significant pain and shock. He was embarrassed by the fact that hospital staff and members of the public saw him being assaulted. He experiences ongoing injuries in his neck and back similar to whiplash. He has been unable to engage in physical play with his young daughter which has caused him to feel angry and bitter. This has placed pressure on his relationship with his family.

These offences took place over a year. Prior to the first of these the 19-year-old offender had no prior criminal record ([13]). He was at the time of offending, homeless. He was a drug user with no employment history. At [15]:

The appellant first had contact with mental health services when he was 14. In the opinion of Ms Henrich [a clinical psychologist], the appellant meets the criteria for a borderline personality disorder and a post‑traumatic stress disorder in relation to his experiences of trauma during his childhood. Ms Heinrich also opined that the greatest risk factor for the appellant re‑offending was his mental health and that treatment was more likely to be effective in the community than in custody. At the time of sentence, the appellant had been assessed for the ‘Abuse Prevention Program’ and the Magistrate was told that the appellant would commence that program if accepted.

The sentencing magistrate gave a single sentence (rather than a sentence for each offence). She started with the view that the appropriate sentence was 2 years imprisonment. She then applied a 40% discount for the guilty plea on one offence and 30% for the others reducing the sentence to 17 months. The Magistrate also took into account that the prisoner had entered plea of guilty thereby acknowledging his guilt and saving the state and the witnesses the need to bring evidence to prove his guilt. By virtue of the Sentencing Act 2017 (SA) this entitled him to a 30% on the sentence that the magistrate would have imposed if he had been found guilty after a trial ([18]). (There is value in an early plea so every jurisdiction provides for a ‘discount’ for a plea but that does put pressure on people to plead guilty, even if they are not.)

Taking into account the six months and 19 days already served in custody or home detention, she imposed a sentence of 10 months imprisonment. Six months would be served in full time custody, the balance could be suspended upon the prisoner entering into a two year good behaviour bond. (The point of ‘suspending’ some of the sentence, as with parole for longer sentences, is to give the prisoner the promise of a reward for good behaviour in prison and to allow his release on conditions which, if breached, can see him go straight back to prison. Without those options a prisoner must simply be released into the community at the end of his or her sentence.)

The appellant appealed to the Supreme Court. Justice Kimber did think the Magistrate had made some errors in the calculation of the sentence, and in particular in the level of discount to be applied for the guilty pleas, but these errors were not argued on appeal and further they benefited the appellant ie the Magistrate gave a larger discount than she should have.

As for the claim that the sentence was ‘manifestly excessive’ the court said (at [40]):

It is not sufficient for an appellate Court to merely conclude that it would have come to a different decision from that reached by the Magistrate, or that the sentence imposed is markedly different from the sentences imposed in other cases. For a sentence to be manifestly excessive, it must be established that the Magistrate came to a decision that was unreasonable or plainly unjust, or that a specific error was made. To put this another way, absent specific error, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’ before an appellate Court may intervene.

The appellant argued (at [43) that he was entitled to leniency because of:

… his lack of previous convictions; that he had not been in custody before his remand for the offences; the time in custody of about two months and three weeks; that he had gained insight; his mental health issues at the time of the offences; the subsequent diagnoses and treatment; the availability of support and accommodation; and his partner being about five weeks’ pregnant at the time of sentence … and the opinion of Ms Heinrich that treatment was much more likely to improve his mental health in the community than in custody.

With respect to the assaults on the emergency workers, the court said (at [49]):

The circumstances of the appellant in favour of leniency had to be balanced with the seriousness of the offending. Some offences were serious examples of the offence. The two assaults are summarised above. The maximum penalty for each offence was five years. As the Chief Justice observed in Stenecker v Police, ‘the community has through Parliament, expressed its concern that condign punishment be imposed for assaults on police officers and other persons who put themselves at risk of violence in the course of the execution of their important public duties’. General deterrence was a particularly important consideration and its significance was not diminished due to the mental health of the appellant. Each assault resulted in ongoing harm…

The court concluded (at [50] and [52]):

In all the circumstances, notwithstanding the matters emphasised by the appellant, a single sentence of ten months, after the reductions for the pleas of guilty and time in custody and on home detention, was not manifestly excessive…

… a sentence of 10 months was proportionate for the offences and this appellant. It was not a crushing sentence.

The appellant argued that the entire sentence should have been suspended. The sentencing magistrate had said:

I must consider whether there are good reasons to suspend your term of imprisonment. Your age, your background and your mental health challenges are good reason to partially suspend your sentence of imprisonment. I am of the view you will benefit from support and assistance in the community. However, it is important to send a message to you and the community that the violence you have displayed and the harm you have caused will not be tolerated. In my view, this means you must spend some time of your sentence in custody. I am ordering that you serve six months in custody commencing today. I suspend the remaining four months of your custody on a $500, two year good behaviour bond. Under the good behaviour bond, you are to follow the lawful directions of Community Corrections and undertake such assessment and treatment as they order.

The appeal court found no error in the Magistrate’s decision.

All grounds of appeal were dismissed.

Discussion

Minds will differ on what might be an appropriate sentence. That is the point Kimber J was making when he said that it was not sufficient for judges on appeal to think they may have imposed a different sentence, rather an appellant must show a legal error by the sentencing magistrate or judge. The issue of whether to suspend the sentence, and how much to suspend were matters for the Magistrate. There was no formula and she had to weigh up many factors. Having done that she decided to suspend four of the 10 months and that was within the range open to her.

One also has to consider that the sentence was not ‘six months imprisonment’. It was six months on top of the six months and 19 days already spent in custody and home detention. It will also be followed by two years of having to report to and be accountable to correction authorities who can compel him to undergo treatment and otherwise comply with directions as to his behaviour.

No amount of gaol time will actually undo the harm done to the victims. Sentencing is not designed to find the ‘price’ of the harm done. The offender’s criminality is the same whether the victims are traumatised by the event or can brush it off. However, the level of aggression or violence are indeed aggravating factors and the fact that there are long term effects suggests that more force was used – more violence inflicted – than in cases where there are no consequences.

Finally, despite claims of general deterrence, sentencing does little to discourage future offenders. The next drug affected, homeless 19yo with PTSD is unlikely to stop and decide not to assault a police officer or paramedic because Mr Hubbard went to gaol for six months or six years.

But these were serious offences – directed not only to the emergency workers but also to his victim. Mr Hubbard be under effective sentence and control with associate deprivation of his liberty for a total of three years (ie six months custody and home detention prior to sentence, six months full time custody and two years supervised liberty in the community). That is not an insignificant sentence. Prison is an inadequate safety net for the mental health service so hopefully Ms Heinrich is correct and treatment in the community will do more to improve his mental health than any treatment in custody. Equally, hopefully, he has gained insight into his behaviour and its affects and with both direction and support he may seek to get on top of his behavioural problems.

Judges do not send people to prison lightly so the recognition that some of this sentence for a young first offender must be spent in full time custody should give some comfort that courts do take these offences seriously. An effective sentence of restricted liberty for three years for a 19yo first offender is indeed a significant sentence.

The bigger concern to me is the delay. The first assault occurred on 26 February 2022, the second on 6 February 2023. Even though he had been charged in February 2022 (which we know, because he breached his bail in February and March 2022) he did not enter guilty pleas to any of the offences until 26 June 2023 ([24]). He was sentenced on 24 August 2023 ([54]). It follows that he served the 6 months and 19 days in custody/home detention from 6 February to 24 August inclusive. What we don’t know is what was happening with the legal process, and his care, between 26 February 2022 and 6 February 2023. Given the legal system could deal with him in six months, one wonders what might have happened if it had been able to deal with him in six months after the first offending ie by August 2022? If he’d been able to get treatment and if the process had given him ‘insight’ then perhaps the police officer, the victim’s partner and the rabbit may all have been spared.

Categories: Researchers

Australian emergency law offline until February

22 January, 2024 - 07:53

Due to personal circumstances I have been unable to post anything since 5 January and this will continue to the end of the month. There has been at least one case I will need to report and I do have some questions pending but these will have to wait until then. If you have written to me, do watch this space for an answer in due course.

Best wishes

Michael Eburn (Australian Emergency Law)

Categories: Researchers

Body recovery, the police and the SES in Victoria

5 January, 2024 - 13:22

Today’s correspondent is with Victoria SES who asks about:

… roles and responsibilities when it comes to extricating a deceased person.

For context, in RCR [Road Crash Rescue] arrangements, we know that’s common practice, as with land search and casualty handling for remote rescue etc. But when we are talking about recovery from suicide or similar, there is a grey area.

We were recently at two separate incidents and were at the forefront of recovery in both instances. First, I can understand the justification because the undertaker wouldn’t be able to access the area, but the second was a request for access that turned into an extrication. In both instances, VicPol made the request, and in both the undertaker was not capable of doing the job.

As volunteers, several members have asked what line do we draw and are tasks like this within our remit?

I have answered a similar question with respect to NSW – see Body recovery, the police and the SES in NSW (December 29, 2012).

The Victoria State Emergency Service Act 2003 (Vic) s 5 sets out the functions of the SES. One of the functions is ‘emergency support’ which includes ‘assisting other agencies and organisations in relation to the performance and exercise of their duties and responsibilities under the Emergency Management Act 2013’. The Act adopts the definition of ‘emergency’ (s 3) set out in the Emergency Management Act 2013 (Vic) s 3. That Act says an emergency is:

… an emergency due to the actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person in Victoria or which destroys or damages, or threatens to destroy or damage, any property in Victoria or endangers or threatens to endanger the environment or an element of the environment in Victoria …

Body recovery is presumably not an emergency, there is little risk to the community and there is no possibility of saving the person’s life.

Body recovery will be incidental to things that are a function of the SES eg ‘responding to floods, earthquakes and storms and their effects’, ‘providing rescue services’ and ‘assisting search and rescue for persons lost on land or in Victorian waters’. That is if a person has died in a flood or storm, or a motor vehicle accident or during a search for a missing person their body is found, it could be inferred that is part of the task to recovery the body for delivery to a morgue.

In NSW, rescue is defined as ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (State Emergency and Rescue Management Act 1989 (NSW) s 3). There does not appear to be a definition of ‘rescue’ in Victorian legislation. The Australian Institute of Disaster Resilience (AIDR) online glossary defines rescue as ‘An operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’. A deceased body is not a person. Body recovery is not therefore part of ‘providing rescue services’. It is however intimately related and the skills required to access a person in need of rescue and to remove them to safety will be very much the same skills to access a body and remove it to a place of dignity.

One of the functions of the NSW SES is (State Emergency Service Act 1989 (NSW) s 8(1)(g)) ‘to assist, at their request, members of the NSW Police Force … in dealing with any incident …’. There is no similar provision in the Victoria State Emergency Service Act.

Discussion

Body recovery is not a specific function of the SES even if, sometimes body recovery is incidental to things that are a function of the SES. Body recovery is ultimately a matter for police, and they can ask anyone who they think can assist, to assist. That could be the SES, the CFA, FRV, Surf Lifesavers or non-emergency service volunteers eg the local speleological (caving) society.

Where an organisation like the SES draws the line is up to the SES. The SES could refuse but I suspect that the leadership of the SES would see assisting police as very much an appropriate function for the SES even if that is not specifically listed as a function in the Act. I think the community would be outraged if the SES indicated it would not assist once it was determined that a person was died and could no longer be ‘rescued’. I think that is true particularly given the SES will have the necessary equipment and training as part of its core roles relating to search and rescue and emergency response.

Where volunteers draw the line is up to them; that is the privilege of being a volunteer. Any volunteer who is asked to attend a body recovery task is free to not go. As a matter of law such tasks are not within the specific remit of the SES but I think that it is within an implied remit from the standing of the SES as a uniformed, community based emergency service. Even if such a task does not literally fall within the definition of either an ‘emergency’ or a ‘rescue’ I expect the community would see it as both; and SES management and many volunteers would see it as an appropriate use of SES resources to assist police when requested even if that is not mandatory.

Conclusion

Legally body recovery and assisting police in a non-emergency are not functions of the Victoria SES. That does not mean that the SES cannot do those things, but it is no required to do them. But the SES and its volunteers can assist if asked and if they want to. Where the SES draws the line is up to the SES; where the volunteers draw the line is up to them. No volunteer is required to take part in those tasks if they would prefer not to.

Categories: Researchers

Intoxicated paramedic good samaritan in SA

31 December, 2023 - 13:18

Today’s correspondent reports that her:

… husband recently collapsed on the side walk in South Australia and a very drunk stranger took over the scene claiming to be a paramedic on holiday from interstate. His actions were actually very dangerous and it’s pure luck my husband didn’t come to further harm.

One assumes there was no malice involved, but my husband could have died, or come to serious further harm. We are very lucky he did not.

We don’t especially want to press charges but would like someone to have a word with him about the dangers of his actions. I was of the impression it is illegal to claim to be a paramedic when you aren’t, but SAPOL say it’s only illegal to impersonate a police officer, not a paramedic and the only option would be civil action if there was damages.

The advice from SAPOL is wrong. The Health Practitioner Regulation National Law cl 113(1) (as set out in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA)) says:

A person must not knowingly or recklessly—

(a) take or use a title in the Table to this section, in a way that could be reasonably expected to induce a belief the person is registered under this Law in the health profession listed beside the title in the Table, unless the person is registered in the profession; …

Maximum penalty:

(a) in the case of an individual—$60 000 or 3 years imprisonment or both…

‘Paramedic’ is a protected title.

Accordingly, if this person claimed to be a paramedic, but was not a paramedic, then he has committed an offence. It is, however, not surprising that SAPOL don’t know that as this offence is generally prosecuted by AHPRA – the Australian Health Practitioner Regulation Agency, rather than state police. We don’t know from the facts given, why it’s thought the person was not a paramedic. Just because they were drunk and dangerous does not mean they were not a paramedic.

A civil action would only be relevant if it could be shown that the patient had in fact suffered harm as a result of this person’s conduct. In that event there would no doubt be argument whether the Civil Liability Act 1936 (SA) s 74 (ie the ‘good Samaritan’ provisions) apply. That section says that a person who ‘acting without expectation of payment or other consideration, comes to the aid of a person who is apparently in need of emergency assistance’ is not liable for acts done ‘in good faith and without recklessness’. Being intoxicated defeats those provisions in NSW and the ACT but not in SA. Just because a person is intoxicated does not necessarily mean they are not acting in good faith or recklessly, they may be the most qualified person there and trying their best, even if their best isn’t very good. These acts are designed to encourage assistance so even incompetent assistance may be protected (see American Good Samaritan protected by Ohio Statute (May 20, 2015)).

Categories: Researchers

Treatment in a Victorian hospital carpark #2

31 December, 2023 - 12:56

Today’s correspondent says:

Your 2015 article [Treatment in a Victorian hospital carpark (August 19, 2015)] has been referred to by a MH [Mental Health] nurse working with VicPol on Mental Health & Police Response unit in an email she circulated regarding a recent case that did not go well.

They had an incident recently where a mental health patient created a significant issue in the carpark and 4 police officers attended. The police had and are still in disagreement with the hospitals refusal to engage a patient in the carpark, regarding why the hospital didn’t assist when they were requested to do so by members on scene with the patient.

Usual practice would be to call AV for patients needing extrication from cars or other management in their car park. In this case AV were not called as the Police were intent on the hospital managing the patient.

Subsequent discussion has identified issues (other than the public land issue) such as how the hospital would manage a patient requiring chemical restraint, care & control who is not on their premises and how the ED would continue to function when they are several staff down in a small rural ED because staff are tied up out in the street.

This was possibly an unusual case in the context of your article as the carpark is technically a public street and is entirely under the control of the Shire Council. Effectively the patient in their carpark is on the street/public road way.

Does this change the advice that you would give on obligation to hospitals to treat patients outside of the hospital building?

No it doesn’t change my advice because may advice was general and will continue to be so. As I said in that earlier post:

A hospital, particular one that operates an emergency department, is holding itself out as providing a service to anyone that comes to its doors (Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428). Even if there was no emergency department a hospital, like the occupier of any building, must owe a duty to people who are on its premises.

But here the person was not on the hospital’s premises. The hospital is not the occupier of the street as it is the occupier of a car park. There has to be a limit on what a hospital can do but it does owe a duty of care to anyone on its premises, but not necessarily to those not on its premises (but see contra, Lowns v Woods (1996) Aust Torts Reports 81-376).

In that earlier post I said:

Does that mean hospital staff have to attend to every request? The answer has to be yes, they have to respond but what the response is will vary with the circumstances. If everyone is engaged treating a patient with life threating injuries they may not be able to leave. If the person is outside the hospital grounds or even too far from A&E then it may be appropriate to call someone else, another doctor, nurse or the paramedics – either those in the hospital or to make a triple zero phone call. In some cases the reasonable response would be to tell the person who is seeking assistance to call triple zero.

If a person ran to an ED and said ‘my friend’s collapsed 10 minutes away’ there would be a duty to do something, but it may be no more than telling the friend to ‘ring an ambulance’ and perhaps even making a phone available if they don’t have one. But it couldn’t be ok to do nothing – to simply say ‘that’s not our problem, please leave’. There would have to be a duty to at least give some advice (see Duties owed to patients in ED (July 17, 2023); Advising patients who want to leave a hospital emergency department – UK and Australia (October 16, 2018)).

As my correspondent has noted there may have been many good reasons why the reasonable response in the circumstances was to leave the matter to the police.

When we talk about ‘duty of care’ etc where talking about civil liability in negligence. That is could the patient have sued the hospital? In the earlier post it was the patient’s friend who approached the ED, and the patient had neck injuries. I think it is easier to argue that if the ED staff had attended or warned the friend not to move the patient until the paramedics got there it would have reduced a risk. In this case it’s not clear what the ED staff, if they had gone, could or would have done to make a difference to the outcome for the patient.

I would stand by my first two concluding points:

That the hospital owes a duty of care to persons who arrive seeking assistance, even if they don’t make it into the doors. …
Where there is a duty of care, it may not require personal intervention, sending someone to assist, such as a paramedic, may be sufficient.

Or, in this case, leaving it to police. But if police are the ones asking for help there would at least need to be some reasoned consideration of why they did not go to assist. If the patient suffered harm and could show that intervention from the hospital staff would have made a difference, then the hospital would need to have an explanation of why it did not assist. That ‘the hospital [could not] manage a patient requiring chemical restraint, care & control who is not on their premises and how the ED would continue to function when they are several staff down in a small rural ED because staff are tied up out in the street’ might all be perfectly legitimate reasons to do nothing.

Conclusion

The facts here do not change my opinion. In my earlier post I said a hospital must owe a duty of care when someone comes to the ED seeking assistance and when someone needs assistance on the hospital’s property. I stand by that. In this case the patient was not on the hospital’s property so that second ground doesn’t apply; but the ED was approached by police seeking assistance with a medical case.

There must have been a duty of care but at its most general that duty is a duty to consider the request. There may be very many good reasons why the appropriate response was ‘we cannot help there; you have relevant powers, you bring the patient to us and if necessary call AV for assistance’. Whether that’s a reasonable response depends on all the circumstances including the potential risk to the patient, the staff, the other patients and the hospital’s ongoing operations.

Categories: Researchers

Lessons for Australia following conviction of US paramedics?

31 December, 2023 - 12:19

Today’s correspondent asks:

Are there any lessons to be learnt for Paramedic practice in Australia following the conviction of the two Paramedics in Colorado involved in the death of Elijah McClain?

They give the following links to news stories to provide the background:

The ABC (US) news story says:

A jury found two Aurora, Colorado, paramedics charged in connection with the 2019 death of 23-year-old Elijah McClain guilty on Friday of criminally negligent homicide.

Peter Cichuniec and Jeremy Cooper were accused of administering an excessive amount of ketamine to sedate McClain after an encounter with police on August 24, 2019.

Cichuniec was also found guilty of assault in the second degree unlawful administration of drugs.

The deceased was stopped and forcibly restrained by police. The fact that the police had no grounds for that action could not have been known by the paramedics. The ABC (US) report continues:

When EMTs arrived at the scene, McClain was given a shot of 500 milligrams of ketamine for “rapid tranquilization in order to minimize time struggling,” according to department policy, and was loaded into an ambulance where he had a heart attack, according to investigators….

The prosecution argued that Cichuniec and Cooper failed to give McClain adequate medical assessments before administering the ketamine when they arrived at the scene.

“Didn’t ask the police a question about it. Didn’t speak a single word to him. Didn’t get a piece of equipment out of the bag. Didn’t kneel down to look at him. Didn’t lean over to look at him. Didn’t put a single finger on him. Didn’t take a single vital sign,” a prosecutor said in closing arguments.

“They knew nothing. They learned nothing. They asked no questions. They didn’t care,” the prosecutor added…

“Elijah is on the ground, barely moving. He does not need to have struggling, minimized,” prosecutors said. “There was not one reason that the defendants needed to make any one of these terrible decisions. There was no justification not to assess Mr. McClain. There was no justification to give someone who is not moving a sedative. There is no justification to ignore a lifeless patient for six minutes before you try to take his pulse.”

McClain weighed 143 pounds, but was given a higher dose of ketamine than recommended for someone his size and overdosed, according to Adams County coroner’s office pathologist Stephen Cina.

Cooper’s defense attorney argued there is a lack of protocol for the situation these paramedics found themselves in, citing the aggravated police presence, the way paramedics say they had to estimate McClain’s weight with police on top of him, the way to determine who had authority at the scene, and the protocols to accurately assess if a patient is suffering from excited delirium…

“There is no protocol in effect in August 2019 that tells paramedics: ‘What do you do when police are all over a potential patient.’ How do you deal with that? There’s been no training there’s-no protocol,” the defense said.

The defense also addressed the six minutes in which paramedics neglected to check McClain for a pulse following the ketamine injection, arguing that McClain was still in the hands of officers on the scene.

“Six anxious minutes for that. Six excruciating for Mr. McClain — who was still being manhandled and restrained by not one, not two, three officers,” the defense said.

There is an offence in Australia of manslaughter by criminal negligence (Wilson v R (1992) 174 CLR 313). I have explained the difference between criminal negligence and civil negligence in earlier posts (see for example Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018)).

It is hard to draw lessons from jury trials as jury’s do not give reasons and even more in Australia than the US they do so in private. Australian jurors cannot comment to the press in the way it seems that US juries do. We therefore do not know what evidence was accepted and what was not, how the juries assessed the defendants’ credibility etc.

In Australia negligent manslaughter is established where the death was caused ‘in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’ (Nydam v R [1977] VR 430). The question for paramedics wondering whether there are any lessons for Australia is to ask whether the conduct of the two Colorado paramedics meets that test.

If an Australian paramedic overdosed their patient, gave a sedative when the patient ‘was on the ground, barely moving’, conduct no examination of the patient and ‘ignore [their] lifeless patient for six minutes before you try to take his pulse’ would that be ‘such a great falling short of the standard of care’ with ‘such a high risk that death or grievous bodily harm … that the doing of the act merited criminal punishment’?

Police and paramedics need to work together but paramedics also need to advocate for the patient. They may not be able to stop the actions of police, but they may be able to warn the police and urge them to step back so they, the paramedics can do their job. Dealing with police who may be anxious to make an arrest may put pressure on paramedics – particularly if they see themselves are part of the same ‘thin blue line’ – but it does not detract from the paramedic’s duty to their patient (see An earlier (2002) Victorian case on ambulance and police negligence (December 26, 2016)).

What is negligent depends on all the circumstances. Some may think that the circumstances, in particular the police actions, justified the paramedic’s actions (or inaction) or stopped the paramedics doing their job. There is no lesson in that however, that just means you would disagree with the jury’s verdict but without hearing the evidence. The jury did not accept that submission.

Conclusion

Negligent manslaughter is an offence known to Australian law. The circumstances described in the news reports might be sufficient to lead to a conviction in Australia, but it would depend on all the circumstances and the view of the jury. We cannot really draw lessons from media reports on cases as they report the various arguments but not how the evidence was perceived by the jury.

Given that the jury returned a conviction, they found the allegations proved beyond reasonable doubt. The fact that others reading the media reports may think that is a wrong verdict is beside the point. Given that the allegations were established it is up to paramedics, not me, to identify what lessons they think can be learned about how to treat a person in custody and how to deal with overly aggressive policing.

Remember too that jury verdicts, whether from Australia or the USA, do not create a precedent.

Categories: Researchers

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